Monday, December 28, 2015

NLRB: Employers can't ban recording at work

On Christmas Eve, the NLRB issued an interesting decision in Whole Foods Market, Inc. (decision here). Whole Foods had a provision in its employee handbook that effectively banned recording devices in the workplace (see below for actual text).

The NLRB described the law in this area:
Not official use.
Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.
Hmmm, did they provide any examples? Sure enough:
Such protected conduct may include, for example, 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, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.
Well, that's helpful. Does that mean that an employer can never ban recording at work? No. As the Board recognized, there may be an "overriding employer interest." The Board noted the example of a hospital prohibiting cameras, which would be okay because of "the weighty patient privacy interests and the employer’s well-understood HIPAA obligation to prevent the wrongful disclosure of individually identifiable health information."

The Board concluded that Whole Foods' blanket prohibition "would reasonably chill the employees in the exercise" of their NLRA rights and therefore the policy was overbroad and violated the NLRA.

The opinion does not address the thorny issue of state wiretapping laws, which sometimes require consent of all parties to recording conversations (except for a footnote that explains that Whole Foods' policy was in effect in states without such laws and made no reference to such laws). Presumably, complying with these laws would be one of those "overriding employer interests" I noted above.

HT: Your Employer Can't Stop You From Recording Conversations At Work.

The actual policy at issue:
In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company 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 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. 
Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery . . . . 
It 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. 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. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

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