By David P. Frantz*
At the end of 2015, the National Labor Relations Board (“NLRB”) marched on in its war against commonplace employee handbook provisions and found that Whole Foods’ policy prohibiting surreptitious workplace recordings violated employees’ rights under the National Labor Relations Act (“NLRA”). See Whole Foods Market, Inc., 363 NLRB No. 87 (December 24, 2015). The NLRB’s decision is a reminder to employers that seemingly innocuous and well-intentioned policies may be deemed unlawful by the NLRB, even in the face of reasonable business justifications.
Whole Foods’ recording policy, which had been in place for over a decade, prohibited employees (including managers) from recording “conversations, phone calls, images or company meetings” on company premises without prior approval from management. Whole Foods attempted to justify this prohibition based upon its open-door policy encouraging employees to state their opinions. Whole Foods argued that recordings of the company’s open forum meetings would “chill the dynamic” and discourage employees from voicing their opinions and criticisms. Additionally, Whole Foods argued that recordings would adversely affect the company’s internal appeal process for termination decisions and confidential meetings held to discuss financial assistance for employees.
The NLRB was unpersuaded by Whole Foods’ justifications and held that employees would reasonably construe the recording policy to prohibit them from exercising their rights under the NLRA. “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected . . . if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” The NLRB provided examples of protected conduct, including “recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” As Whole Foods’ policy prohibited all unapproved workplace recordings without any qualifications, the NLRB found it to be overbroad and unlawful.
The NLRB noted it was not prohibiting outright all employer restrictions on workplace recordings. Rather, employers may have valid, narrowly-drawn restrictions on recordings when warranted by the circumstances. For example, in a hospital setting, patient privacy interests can provide a compelling justification for a policy prohibiting employees from recording images of patients, equipment, and facilities. The NLRB stated that Whole Foods’ business justifications (i.e., encouraging open communication and preserving privacy interests) were “not without merit.” However, it found the justifications were based upon relatively limited circumstances (e.g., meetings and termination appeal panels) that were not compelling enough to justify the unqualified restriction on unapproved recordings.
In light of the NLRB’s Whole Foods decision, employers should review their employee handbooks and policies regarding workplace recordings. Such policies could lead to unfair labor practice charges, and the NLRB likely will deem unlawful any blanket prohibitions of workplace recordings that lack compelling and specific justification. Employers that have policies restricting workplace recordings and wish to retain them should contact counsel about revising the policies to withstand the NLRB’s scrutiny.
*David P. Frantz regularly represents and counsels employers on the National Labor Relations Act and workplace policy related issues. For more information about the Whole Foods decision or your labor and employment law needs, please contact Dave (dpf@zrlaw.com) at 216.696.4441.
