Are You on Candid Camera? The NLRB Just Made It More Difficult to Ban the Use of Recording Devices in the Workplace
Author: John T. Merrell (Greenville)
Published Date: January 15, 2016
On December 24, 2015, the National Labor Relations Board (NLRB) issued a decision in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), finding for the first time that it is unlawful for an employer to adopt a work rule that prohibits employees from recording company meetings or conversations with coworkers without a valid legal or business justification. This decision is another in a long line of cases in which the NLRB has deemed employer handbook policies unlawful. Employers that maintain policies that do not pass muster under NLRB law risk having their union-election victories overturned—making it crucial for employers to understand the current state of labor law with respect to such policies.
The Work Rules at Issue
The first work rule at issue in the case was a “Team Meetings” policy that prohibited employees from recording company meetings:
It is a violation of [company] 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.
The second rule prohibited employees from recording conversations with each other:
It is a violation of [company] 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.
The General Counsel of the NLRB argued that recording conversations in the workplace is a protected right and that employees “would reasonably interpret the rules to prohibit their use of cameras or recording devices in the workplace for employees’ mutual aid and protection, ‘such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment related matters.’”
The NLRB’s Decision
The NLRB ruled that Whole Foods Market’s policies were unlawful. According to the Board, photography 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 of the National Labor Relations Act (NLRA), as long as “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” The NLRB gave the following examples of protected activity:
recording images of protected picketing;
documenting unsafe workplace equipment or hazardous working conditions;
documenting and publicizing discussions about terms and conditions of employment;
documenting inconsistent application of employer rules; and
recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.
The NLRB acknowledged that some states, including many of the states where Whole Foods operates, have laws that make nonconsensual recording illegal. The NLRB’s position was that Whole Foods Market’s policy was still unlawful—even in those states—because it was not limited to stores in the states where nonconsensual recording is illegal. The NLRB stated, “the Respondent’s rules do not refer to those laws and do not specify that the recording restrictions are limited to recording that does not comply with State law.” It appears the NLRB’s position is that an employer that operates in states where nonconsensual recording is illegal must refer to those recording laws and specify that its restrictions on nonconsensual recording are limited to those states.
The NLRB also acknowledged that some restrictions on recording may be valid depending on the type of business in which the employer is engaged. In this regard, the NLRB did not overrule its 2011 decision in Flagstaff Medical Center, Inc., in which it held that patient privacy restrictions may justify a recording ban in hospitals. The NLRB also acknowledged that Whole Foods Market’s business justifications for prohibiting recording in annual town hall meetings and termination-appeal peer panels were “not without merit,” but found that these narrow circumstances could not justify a broad, unqualified restriction on recording.
Key Takeaways for Employers
The NLRB’s decision in Whole Foods is the most recent example of the Board’s continued efforts to expand the definition of concerted activity protected by Section 7 of the NLRA. Employers should review their existing policies and proceed with caution when disciplining an employee for engaging in photography or making recordings in the workplace. An employer may still be able to maintain a no recording policy (1) in states where nonconsensual recording is illegal or (2) where a valid business justification exists.
Employers should be surgical in tailoring their policies, spelling out the explicit business reasons why workplace recording by employees is prohibited. If a recording restriction is necessary to protect the employer’s confidential processes, recipes, or technology or to protect patient privacy, the employer should say as much in the policy and make sure the policy is narrowly tailored to the times and physical locations where such confidentiality is necessary to protect the employer’s legitimate business interests. In other words, even if an employer has a valid business reason to protect the confidentiality of its proprietary processes, the NLRB will not allow blanket restrictions on all photography or recording on the employer’s property.
Finally, it is important to note that the Whole Foods ruling does not give employees an unfettered right to take photos or videos or make audio recordings for any purpose whatsoever. Rather, employers that wish to discipline an employee for taking photos or making recordings in the workplace must carefully evaluate whether the employee’s actions constitute Section 7 activity under the NLRA. If the employee’s actions do not constitute protected concerted activity protected by Section 7, the employee’s actions are not protected by the NLRA.
John Merrell is an attorney in the Ogletree’s Greenville, South Carolina office. Mr. Merrell represents and counsels management on a range of labor and employment law issues, including: Preventive employment and labor law advice, including matters arising under The National Labor Relations Act (NLRA), Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and...