Can employees secretly record or take video of their boss or co-workers without permission?

On December 24, 2015, the National Labor Relations Board (NLRB), in Whole Foods Market, Inc., Case No. 01-CA-096965, 363 NLRB No. 87, held that employees could reasonably construe the following policies as prohibiting Section 7 concerted activity activity and that the policies therefore violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”). employee - policies

Here are the two policies:

“It is a violation of [employer] policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President, or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.”

And:

“It is a violation of [employer] policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

The Board stated “case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right” and found, therefore, that photography and audio and video recording at the workplace are protected under certain circumstances.”

But wait, under our state law, it is illegal (Penal Code Section 632) to record a confidential communication without all parties’ consent. Also California’s Constitution expressly guarantees a right of privacy for all citizens. Doesnt that trump the NLRB ruling?

Probably not, because of something called the Garmon doctrine, which says that the NLRA also preempts states from regulating conduct that is arguably either protected or prohibited by the NLRA.' The "arguably protected or prohibited" test broadly excludes state laws and claims without regard to the substance of the state regulation. Thus, the NLRA preempts state regulation even where the substantive terms of a state law are wholly consistent with that of the NLRA.

That’s pretty broad. It’s one more example of how federal agencies are gradually nationalizing all labor regulations throughout the country.