Nowadays, many people own and frequently use a smartphone to take photos or record videos, among many other functions. Employers may have an interest in prohibiting video or photograph of its trade secrets or other confidential information. However, a December 24, 2015 decision issued by the National Labor Relations Board (NLRB) could impact whether these policies are lawful under the National Labor Relations Act. That Act protects certain union-related activity by private-sector employees.
In a 2-1 decision, the NLRB held in Whole Foods Market, Inc. that a private-sector employer’s unqualified prohibition of all workplace recording is unlawful and violates the Act. The Whole Foods’ policy first prohibited its employees from taking audio and/or video recordings of their company meetings:
“[T]eam Meetings: It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular phone…) 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.”
Secondly, Whole Foods’ policy also prohibited the recording of workplace conversations in absence of prior approval from management:
“[I]t is a violation of Whole Foods Market 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…”
In its decision, the NLRB determined that Whole Foods’ rules were overbroad and constituted a violation of Section 8(a)(1), which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce” employees in the exercise of their Section 7 rights to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection”. In this case, the employer’s blanket policy would reasonably chill employees in the exercise of their Section 7 rights, which could include documenting critical issues like unsafe workplace conditions, discriminatory actions, etc. The NLRB held that “[P]hotography and audio or video recording in the workplace, as well as the posting of photographs or recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid or protection, and no overriding employer interest is present.”
The NLRB ordered Whole Foods to cease and desist from maintaining the above rules in its General Information Guide, as well as take steps to revise its company policy regarding recordings. Whole Foods is considering whether to appeal.
In our July, 2015 newsletter, we wrote about the March 18, 2015 memo by NRLB General Counsel concerning the employee handbook provisions under the Act. That memo cautioned against overly broad employee handbook prohibitions on the use of cell phones/cameras. Some suggest this report reflects the expansive view of Act. In any event, employers are wise to frequently review their employee handbooks for compliance with the NLRA and other laws.