NLRB Says Employers May Not Maintain an Outright Ban on Employees’ Use of Recording Equipment at Work
By: Robert Bowes with Alex Jones
Add the National Labor Relations Board’s (NLRB) recent ruling in Whole Foods, Inc. to the growing list of NLRB decisions limiting employers’ ability to manage the workplace. In Whole Foods, Inc., the NLRB determined that employers may not prohibit employees from using audio or recording devices while at work. This sets an important precedent given, among other things, the pervasiveness of iPhones and other recording devices.
The case stemmed from a provision in Whole Foods’ Handbook that made it a violation of company 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.).” The Handbook expressly stated “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.”
In a 2-1 decision, the Board concluded the policy violated Section 7 of the National Labor Relations Act, which guarantees employees’ the right to organize. The NLRB reasoned that prohibiting the use of audio and video recordings could prohibit activity protected by Section 7. The Board was concerned the policy may deter employees from documenting, among other things, (i) unsafe or hazardous working conditions, (ii) anti-union sentiments, or (iii) evidence pertaining to an employment-related action.
Notably, the Board admitted there was no evidence that Whole Foods intended to limit activity protected by Section 7 or that its policy was implemented with anti-union animus. Despite the lack of such evidence, the Board nonetheless concluded the policy violated Section 7 due to the potential chilling effect it could have on employees’ protected rights.
Employers must be aware the Board appears to have expanded the definition of “concerted activity” under the National Labor Relations Act by taking the position that a solitary act of recording by a single employee could constitute “concerted activity” within the meaning of Section7, when the recording is a “part of, or is undertaken in furtherance of, a course of group action.” The Board went on to say that “activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.”
The Board neglected to consider the practical reasons for Whole Foods’ policy – specifically, the growing number of iPhone and smart phone users and the disruptive nature of using these devices while on the job. Moreover, the dissenting Board member agreed with Whole Foods in that its policy was focused on “fostering collective activity and free expression” rather than suppressing it.
The decision does not completely prohibit employers from limiting their employees’ use of recording devices at work, but the Board stated that policies must be “narrowly drawn, so that employees will reasonably understand that Section 7 activity is not being restricted.” Unfortunately, the Board gave little guidance as to what this means. Employers with similar policies should consult with their attorney and review and tailor the policies now to ensure they comply with this NLRB decision.