Companies, Beware Your Photo and Recording Rules

If your company has policies prohibiting audio or video recording or taking pictures in the workplace and restricts cellphone use at work to nonworking times or nonwork areas, then beware.

A recent National Labor Relations Board decision calls into question the validity of such policies. Even if not promulgated in response to any union activity or otherwise intended to interfere with employees’ rights under the National Labor Relations Act, such policies could still be found unlawful.   

In Whole Foods Market Inc., the NLRB was presented with the issue whether the grocery chain violated Section 8(a)(1) of the NLRA by maintaining two similar work rules that prohibited recordings in the workplace without prior management approval. An administrative law judge found the no-recording rules did not explicitly restrict employees’ rights because the rules did not prohibit employees from engaging in protected, concerted activities under Section 7 of the NLRA. Additionally, the judge did not view the act of making recordings in the workplace as its own protected right. Contrary to the sound decision of the judge, a divided NLRB found the rules unlawfully infringed upon employees’ Section 7 rights.

Section 7 gives employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Whole Foods is yet another in a long series of NLRB decisions broadening its interpretation of employees’ Section 7 right to engage in other concerted activities for the purposes of mutual aid or protection by finding a seemingly neutral and benign company policy unlawful under the NLRA. While the act of recording generally is an individual act and prohibiting such recordings does not, in and of itself, prevent an employee from voicing concerns about terms and conditions of employment, the NLRB nevertheless found the rules unlawful. 

Based on this finding, one might think Whole Foods had no business reason for its rules or that the rules were intended to interfere with employees’ Section 7 rights, but that simply was not the case. The rules set forth the grocer’s legitimate business justification for the recording restriction, which was “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust.” Further, the rules were in no way discriminatory.

They applied to both supervisors and employees, they applied all of the time, and they applied whether employees were engaged in protected, concerted activity.  Whole Foods also supported its business rationale with evidence that the rules aided the grocer in fostering free and open dialogue in three areas:

·      Group meetings, which included discussions of employee complaints as well as discussions of proprietary business information.

·      Peer review panels that reviewed termination decisions.

·      Meetings where employee requests for emergency assistance were discussed, which often included discussions of very private information about employees, including personal health issues.

Whole Foods simply wanted to ensure these types of candid exchanges continued in its stores. The board majority, however, did not find these to be overriding business reasons for the rules.   

And while the NLRB did not hold that companies are prohibited from having any policies that restrict recording in the workplace, it held that such policies must be narrowly tailored such that employees “understand that Section 7 activity is not being restricted.” The problem with this holding is that it is unclear how significant an employer’s business interests must be for a no-recording policy to pass muster.

Based on this decision, it is not enough that an employer seeks to continue open and honest exchanges in the workplace.

It likewise seems that a policy simply prohibiting all use of cellphones or other recording devices during working time or in working areas could be found overly broad. Thus, the NLRB offers as examples of protected, concerted conduct the photographing of unsafe equipment and the recording of discussions about terms and conditions of employment — both of which are likely to occur during working time and in work areas. 

The NLRB did not, in Whole Foods, overrule earlier precedent that found lawful a hospital’s policy restricting employees from recording images in a patient-care setting, but employers are left to wonder what business considerations short of patient privacy will suffice to justify no-recording policies.

Arguments can be made that employers should be allowed to protect things like trade secrets and proprietary equipment or processes, and perhaps there will be other sanctioned policies to protect the privacy of other types of customers or clients. These, however, are unanswered questions following the Whole Foods decision. 

While Whole Foods is being appealed to the U.S. Court of Appeals for the 2nd Circuit, the NLRB will likely continue to scrutinize these types of policies.

In the meantime, companies should closely examine their own recording and cellphone usage policies and assess the risks vs. the reward of such policies. At a minimum, companies should understand the potential risks of maintaining no-recording policies and define their best business case for maintaining such policies.

Tanja L. Thompson is co-chair of the Traditional Labor Practice at Littler Mendelson in Memphis, Tennessee. Comment below, or email editors@workforce.com.