15 Aug Is Your Workplace No-Recording Policy Too Broad?

This summer the Second Circuit Court of Appeals dealt another blow to employers – this time related to employer no-recording policies.  Whole Foods Market Group Inc. (“Whole Foods”) appealed to the Second Circuit the decision of the National Labor Relations Board (“NLRB”) finding that Whole Foods violated Section 8(a)(1) of the National Labor Relations Act (“the Act”) by maintaining overbroad no-recording policies.  Whole Foods Mkt. Grp., Inc. v. NLRB, Nos. 16-0002-ag, 16-0346, 2017 U.S. App. LEXIS 9638 (2d Cir. June 1, 2017).

Section 7 of the Act guarantees employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 It is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed Section 7.

When looking at an employer’s rules to determine if an unfair labor practice occurred, the Court examines whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights.  Even if a rule does not explicitly restrict protected activity, the NLRB has determined that the rule will constitute a violation if: (1) employees would reasonably construe the language to prohibit protected activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of protected rights.

Here, Whole Foods’ no-recording policies prohibited all recording without management approval.  Whole Foods’ stated purpose for the policies was to promote employee communication in the workplace.

The NLRB found (and the 2nd Circuit agreed) that because Whole Foods’ no-recording policies prohibited all recording without management approval, those policies prevented employees from engaging in activities that included: recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules without management approval.  Therefore, the policies as written could “chill” an employee’s exercise of his or her Section 7 rights.

Employers need not immediately scrap their no-recording policies completely.  They simply need to narrow the scope of the policies by placing some limits on recording audio and video in the workplace to ensure that the policies do not violate the Act.  Consult with a MWH Law Group attorney to ensure that your policies (and Employee Handbook, in general) comply with the Act.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

© 2017 MWH Law Group LLP. All rights reserved.

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