HR Minute

NLRB Strikes Whole Foods Market's Policies Prohibiting Employees' Workplace Audio/Video Recordings

In late 2014, I wrote about “holiday gifts” the National Labor Relations Board delivered to labor unions. The first was the “ambush” election rules that reduced the time between petition and election by about half. The second was the Board’s decision giving employees access to Company e-mail systems for union organizing purposes.

In late 2015, the Board did it again. On Christmas Eve, the Board held that Whole Foods Market’s employee handbook policies prohibiting employees’ audio and video recordings in the workplace (including during company meetings) violated the National Labor Relations Act. Even though the stated purpose of the rules was to encourage free expression during employee meetings, the Board found that employees would reasonably construe the policies as restraints on their rights under the Act. There is little doubt that unions will rely on this decision to pressure employers and help win elections, but it is important to note that this decision affects virtually all workplaces–not only those with unions.

The Administrative Law Judge who first heard the case had found that “[m]aking recordings in the workplace is not a protected right,” and recommended that the case be dismissed. A dissenting Board member pointed out that the policies’ stated purpose was to encourage free expression, which, combined with evidence of Whole Foods’ workplace culture, supported a determination that the rule was intended to protect employee speech, including speech protected by the Act. The dissent also pointed out that making a recording is typically an individual act, not concerted activity protected by the Act.

The Board majority dismissed the points made by the Judge and the dissenting Board Member, and even dismissed arguments that nonconsensual recordings are unlawful in some states (since the Whole Foods policy applied in all states). Instead, the majority pronounced that the “rules would reasonably be construed by employees to prohibit Section 7 activity,” and therefore violated the Act.

The Board’s decision doesn’t completely rule out the possibility that valid restrictions on workplace photography and recordings might be maintained. In fact, the majority acknowledged that “narrowly drawn restrictions” might be permissible. It did not suggest, however, what restrictions pass muster.

Given this decision, it is clear that broad policies restricting workplace recordings need to be revised. Employers should assess business, practical, and legal considerations that warrant restrictions on workplace recordings, but carefully avoid general language that this Board can interpret as restricting activity protected by the Act.

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