LEGAL: Policies against employee videos/recordings unlawful

Like many employers, your employee handbook may contain some version of the following rule:

Without prior management approval or consent, recording conversations, phone calls and company meetings with any audio or video recording device is prohibited.

If it does, you should consider revising such rules in light of the latest pronouncement from the National Labor Relations Board (NLRB). If you are thinking this article is not applicable to your business because “we don’t have a union” – think again. The NLRA applies to most employers and protects most employees (with limited exceptions) with or without a union.

The NLRB is the administrative agency that enforces and interprets the NLRA and protects the rights of employees engaged in “concerted activity,” which occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. In addition, one employee may be engaged in protected activity when engaging in protected activities with the authority of other employees, such as bringing group complaints to the employer or otherwise seeking group action with respect to terms and conditions of employment. Such activities might include, for example, a group of employees inquiring about wage increases, or seeking to improve workplace conditions, such as expressing safety concerns.

Section 7 of the NLRA grants employees the right to organize for purposes of collective bargaining, to engage in concerted activities for mutual aid and protection regarding their wages, hours and working conditions and to refrain from such activities. These rights are generally referred to as “Section 7 rights.” In recent years, the board has increasingly scrutinized many commonly-accepted employer policies and activities to find that a variety of employer policies either violated Section 7, or had an undue “chilling effect” on employees’ exercise of those rights, issuing a number of employee-friendly decisions concerning a variety of workplace rules and practices.

Last year was no different with the board closing out 2015 with its decision in Whole Foods Market Inc., 363 NLRB No. 87, (Dec. 24, 2015) in which it held that the employer’s rule against unauthorized recording of conversations or taking of photographs without prior management approval violated Section 8(a)(1) of the National Labor Relations Act. The Whole Foods decision is yet another example of the board’s aggressive stance regarding employee’s Section 7 rights after a line of recent decisions from the board regarding other common employer personnel policies, such as Purple Communications, 361 NLRB No. 126 (September 24, 2014) (employer may not ban employees’ use of Company email systems during nonworking time absent special business justifications) and Flex Frac Logistics, 358 NLRB No 54 (2012), upheld, 2014 WL 1178698 (5th Cir. 2014) (confidentiality clause violated Section 8 rights even though it did not specifically mention “wages” because it was broad enough that employees could reasonably construe it to restrict Section 7 rights).

When determining whether a workplace rule violates Section 8(a)(1) of the NLRA, the board and courts are first to consider whether the rule explicitly restricts activities protected under Section 7, but even absent such specificity, the rule may still violate the NLRA if:

  1. employees would reasonably construe the language to prohibit Section 7 activity;
  2. the rule was promulgated in response to union activity; or
  3. the rule has been applied to restrict the exercise of Section 7 rights.

 

The two workplace rules at issue in the Whole Foods decision were contained in the company’s general information guide (GIG), which was distributed to employees.

The first rule at issue provided as follows:

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 the 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. 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.

 

The second rule at issue in the decision provided:

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.

 

In addition to these two rules, the GIG contained a list of “major infractions” that could result in discharge, which included the following:

  • “recording conversations, phone calls or company meetings with any audio or video recording device without prior approval or consent.”

 

In its analysis, the board considered “photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media,” to be protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.

In fact, the board held that such protected conduct “may include…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.” In summary, the board considered photography or recording, even when covert, to be “an essential element in vindicating the underlying Section 7 right.”

While the board recognized several potential legitimate restrictions on employees’ ability to record in the workplace, such as certain state laws which prohibit nonconsensual recording, and/or industry-specific privacy laws such as the Health Insurance Portability and Accountability Act (HIPAA), the board found the Whole Foods rules were not limited to stores geographically based on relevant state law, but were applied companywide and found that no overriding privacy interests applied.

Whole Foods argued the rules were in place “to promote open communication and dialogue” in the workplace and to “preserve privacy interests, including personal and medical information about team members, comments about their performance, details about discipline, criticism of store leadership and confidential business strategy and trade secrets.” Whole Foods further argued that the rules contained an “embedded rationale – the encouragement of open communication – that would lead a reasonable employee to understand their lawful purpose.” The board found however, that Whole Food’s attempted business justifications, while “not without merit,” were based on relatively narrow circumstances, and thus failed to justify the unqualified restrictions placed on Section 7 activity by the rules at issue.

The board noted that its decision does not mean that “employers are forbidden from maintaining narrowly drawn restrictions on recording” but the board went on to find that the rules at issue were unlawful because they would reasonably be read to prohibit all recording.

Where an employer has a business justification with respect to a no-recording rule, the business justification should be set forth in the policy as specifically as possible. For example, medical providers and business associates subject to HIPAA may benefit from specifically referencing such rules to applicable industry-specific privacy concerns and regulations. Many employers include a “savings clause” or “disclaimer” provisions such as “this rule is not intended to prohibit employees from engaging in protected concerted activity under the National Labor Relations Act or other applicable laws.” However, the Board has observed such disclaimer language may not be sufficient because most employees are not knowledgeable of their rights guaranteed under the NLRA and thus such disclaimers are unlikely to satisfy board scrutiny.

The board’s decision reversed the prior ruling of an administrative law judge, and in turn, Whole Foods has appealed the NLRB’s decision to the U.S. Court of Appeals for the Second Circuit. At the time this article goes to press, the case is still pending in the Court of Appeals. However, given the board’s aggressive stance with respect to the no-recording rule and other commonly-accepted employment policies, employers should consult with legal counsel to ensure employment policies are drafted to prohibit conduct outside the scope of Section 7 rights and are specific enough with respect to the conduct prohibited so as not to interfere with or “chill” an employee’s exercise of his or her Section 7 rights, or any other legal rights.