February 18, 2016
Compliance Matters    
NLRB Outlaws Policy Restricting Employees from Making Any Secret Recordings at the Workplace   

Most employers and their counsel give little thought to the 81 year old National Labor Relations Act. And why would they, they ask, since that law only pertains to businesses which are unionized or under the threat of becoming union, correct? Actually, that's 100% wrong.

Grocery chain Whole Foods Market recently found themselves on the receiving end of a stunning ruling from the labor law watchdog agency known as the National Labor Relations Board (NLRB) concerning a common workplace policy. The NLRB used a case against Whole Foods to announce that it is illegal for an employer to maintain a policy prohibiting all forms of audio, photographic, and video recording by employees. Here is what happened and why its important to you.

Background. The NLRB has been on a tear under President Obama, striking down all sorts of workplace rules and policies that may tend to chill employees' exercise of rights protected under the law. The law allows employees to band together to protest employer actions affecting the workplace and to engage in such "concerted activities" for the employees' mutual aid or protection.

Most people think that protected concerted activities are only group protests over working conditions and the like, but the concept is far more expansive than that. In fact, these activities don't have to have any connection to union organizing. Many of the prosecutions for employer violations occur in non-union companies.

According to the NLRB, a violation occurs if an employer's rule is written in such a way that employees might think it covers actions which are protected by law, even if the rule is never enforced. Just having the rule is enough to warrant prosecution by the NLRB.

Under the banner of protecting employee rights to engage in concerted activities, the NLRB has struck down a wide array of common employer rules such as:
  • Requiring employees "to work harmoniously with other employees;"
  • Prohibiting employees from making insulting statements about the company or supervisors in social media;
  • Banning off-duty employees from remaining on the employer's premises;
  • Prohibiting "insubordination or other disrespectful conduct;" and
  • Requiring employees to obtain authorization before speaking to the media.
On the issue of workplace recordings, the NLRB has previously explained that audio, photographic, and video recording in the workplace, as well as posting of such recordings on social media, is protected by the law when employees are acting together for their mutual aid or protection, so long as no overriding employer interest is present. Such protected activities may include for example, employees documenting or publicizing unsafe workplace equipment, discussions about terms and conditions of employment, or inconsistent enforcement of employer rules.
Whole Foods Policy. The NLRB reviewed a Whole Foods policy that prohibited employees from recording any "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 management or all parties to the conversation. The stated purpose for the policy was to "encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust."

The NLRB struck down the policy for two reasons. First, it ruled that the policy was overbroad because it unqualifiedly prohibited "all workplace recording." Thus, the policy did not differentiate between those recordings which may fall under the banner of protected concerted activity and those recordings which do not. Second, the policy required employees to obtain the employer's permission before engaging in any recording activity. This included recordings made on the employee's non-working time, such as during lunch and rest breaks and before and after work, though still on the premises. Under longstanding NLRB rulings, employers may not require employees to obtain permission from management before engaging in protected concerted activity during an employee's free time in non-work areas.

Whole Foods argued that its policy should be upheld because nonconsensual recording is unlawful in many of the states where the company operates. However, the NLRB pointed out that the policy was not limited to only those states, nor did it reference any state laws that require the permission of all parties.

The NLRB acknowledged that employers may have a business justification to maintain "narrowly drawn restrictions on recording." Such restrictions might include "annual town hall meetings and termination-appeal peer panels," as Whole Foods argued. However, the NLRB rejected the policy in its entirety because it unqualifiedly prohibited all recording, rather than making these fine distinctions.

Whole Foods has appealed the ruling to the U.S. Court of Appeals for the Second Circuit. Even if Whole Foods is ultimately successful in that appeal, the NLRB is permitted to continue prosecuting other employers elsewhere in the country that have similar prohibitions on employee recording.

The Takeaway. Employers seeking to minimize the risk of an NLRB prosecution ought to proactively scrub the organization's personnel policies and work rules with an eye toward whether these rules implicate employee protected concerted activity. If even one does, the rule or policy should be modified accordingly or possibly eliminated altogether. It is recommended that a review of personnel policies and work rules be undertaken with the guidance of legal counsel familiar with the NLRB's rulings, as the requirements of this law are unlike other more commonly known labor laws and often are counter intuitive.

If you have any questions, please call your firm contact in California at (818) 508-3700 or in North Carolina at (704) 846-2143, or visit us online at  www.brgslaw.com.

Matt Wakefield
Richard Rosenberg
Nicole Haynes 
Ballard Rosenberg Golper & Savitt, LLP

500 N. Brand Blvd.
Twentieth Floor
Glendale, CA 91203
(818) 508-3700

57 West 38th St.
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New York, NY 10018
Ken Ballard: 
(212) 857-0244

6135 Park Drive South
Suite 510
Charlotte, NC 28210
Matthew Wakefield:
(704) 846-2143 

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