Dive Brief:

• Bloomberg BNA reports that Whole Foods Market Group Inc. lost on appeal its battle to prohibit employees from recording communications in the workplace. The U.S. Court of Appeals for the 2nd Circuit upheld a National Labor Relations Board (NLRB) 2015 ruling that Whole Foods' electronics policy was too broad and violated workers' rights.
• Whole Foods' policy banned the use of tape recorders, cell phones and other electronic devices from recording conversations in the workplace without a store's or a facility leader's previous consent. But the appeals court said such a broad policy violated workers' right to communicate about workplace issues and unionization or to assemble afterwards, all rights protected under the National Labor Relations Act (NLRA), says Bloomberg.
• Although the court ruled against Whole Foods, it said that the company could narrow the policy without violating employees' rights and infringing on other worker's privacy. 

Dive Insight:

The appeals court set a standard with its ruling by coming down on the workers' side, despite the growing number of electronic devices they can access at work or bring in from home. The court protected workers' rights to open, honest communication, especially as it applies to union organizing under the NLRA.

This is the second recent case in which the 2nd Circuit has sided with the NLRB. In early May the appeals court ruled that an employee's vulgar Facebook post about his manager was protected speech because he also discussed a union election. Evolving technology and social media have prompted the NLRB to push its reach further into the workplace, identifying new spaces where protected activity may occur. Whether that continues under the current administration is unclear for the moment. 

Employers can look at the ruling in this case for lessons on how to deal with similar situations. What's key is to ensure that policies are drafted according to the law, but aren't so over-reaching that they strip workers of their rights. Employers can take steps to protect workers' safety and privacy in their electronic policies by setting parameters for using devices. They also can back up their policies by specifying enforcement measures.