By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.
Smart phone technology, and the ability of video and audio recordings to be uploaded to social media sites, has prompted many employers to adopt rules regulating the surreptitious recording of workplace interactions. The “no recording” rule adopted by Whole Foods Market Group, Inc. is a common example:
“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 cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from [management], 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 business justifications for such a rule can include (1) prevention of workplace bullying, harassment and retaliation, (2) protection of trade secrets and proprietary information, (3) protection of private or embarrassing information shared in confidence, (4) protection of vendor and customer relationships, and (5) encouragement of open dialogue among employees.
The National Labor Relations Board (“NLRB”), however, has long held that a work rule violates Section 8(a)(1) of the National Labor Relations Act “if it would reasonably tend to chill employees” from engaging in concerted activities for mutual aid or protection. Such a work rule can violate the Act even if adopted by a non-union employer. Subject to review and enforcement in federal court, the NLRB has the power to order an employer to (1) revise or rescind a work rule determined to violate Section 8(a)(1), and (2) post notices prescribed by the Board.
On June 1, 2017, the U.S. Court of Appeals for the Second Circuit affirmed and enforced a 2015 NLRB Decision ordering that Whole Foods’ “no recording” rule be rescinded or revised. The NLRB opined that the rule unqualifiedly prohibited all workplace recordings, including recordings in pursuit of concerted activities for mutual aid or protection. The Board found that the rule could reasonably chill the employees in the exercise of their protected rights, such as “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.”
The Second Circuit also enforced an order from the NLRB Decision requiring that a notice be posted at all Whole Foods’ facilities companywide. The prescribed notice includes the following statement: “The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.” The prescribed notice also reminds Whole Foods’ employees of their right to “form, join or assist a union.”
To be clear, the Whole Foods decisions only addressed a rule which unqualifiedly prohibited all workplace recording. The decisions did not go so far as to declare all “no recording” rules unlawful under Section 8(a)(1). Indeed, at least one previous NLRB decision found that an employer rule that prohibited the use of cameras for recording images in a hospital setting did not violate Section 8(a)(1), in light of the compelling patient privacy interests at stake.
As noted in a previous post on this blog, it is strongly recommended that employee handbooks be periodically updated. The Whole Foods decisions show why such periodic updates are important. For any employee handbook with a workplace recording ban similar to the Whole Foods’ rule above, the time for such an update is now.
In this regard, the first remedial action contemplated in response to the Whole Foods decisions need not be the elimination of a recording ban altogether. Indeed, the legal risks of such an option may be prohibitive for certain employers. Rather, the first remedial actions contemplated should be analyses of two questions: (1) Does the existing rule have a potential chilling affect on the exercise of protected employee rights?; and (2) if so, can the language of the rule be modified to serve its underlying business justifications without the collateral damage of a potential chill on protected employee rights? Ultimately, the best option may be to maintain the “no recording” rule, albeit with a narrower scope. Of course, any “no recording” rule should be reviewed with legal counsel prior to adoption.