Most people in modern workplaces carry high definition video cameras in their pockets. This can make employers uncomfortable for a variety of reasons, but any employer that wishes to regulate recording devices in the workplace must be careful not infringe on employees’ rights to engage in “protected concerted activity.” Even though the National Labor Relations Act (NRLA) was signed in 1935 – roughly the same year the word “video” entered the English lexicon – the National Labor Relations Board (the Board) has found that the use of recording devices in the workplace is often concerted activity protected by the NLRA.
In Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), the issue for the Board was whether Whole Foods violated the NLRA by maintaining two anti-recording policies. One policy prohibited the recording any conversations or company meetings without management’s approval or the consent of all parties to the conversation. Similarly, the second policy prohibited recording any conversations without management approval. The justifications for the policies were to encourage the free exchange of ideas at company meetings, and to eliminate the chilling effect that may exist when a person is concerned he or she is being recorded. Importantly, the scope of the policies was not qualified in any way, and there was evidence that the policies applied regardless of whether or not employees were engaged in protected concerted activity.
Under Board precedent, photography and audio or video recording in the workplace, as well as posting photos and recordings on social media, are protected concerted activities as long as employees are acting in concert for their mutual aid and protection, and no overriding employer interest is present. For example, recording images of unsafe working conditions or protected picketing, or documenting and publicizing discussions of terms and conditions of employment may all be protected concerted activities.
In its argument, Whole Foods relied on Flagstaff Medical Center, 357 NLRB No. 65 (2011). In that case, the Board held that a hospital’s policy of prohibiting recording during work time on hospital property was justified in light of the privacy interests of the hospital’s patients, and the hospital’s HIPAA obligations to prevent wrongful disclosure of health information. Whole Foods argued that, like the hospital, its policies were justified by its desire to protect privacy interests, including information about its employees and the confidentiality of its trade secrets. Although the Board conceded these justifications were “not without merit,” it held that such broad and unqualified policies violated the NLRA because they could be read to prohibit protected concerted activity. Further, it distinguished Flagstaff Medical Center, finding the hospital patients’ privacy interests in that case far more compelling than the interests articulated by Whole Foods.
The takeaway for employers is that to maintain an anti-recording policy, there must be a strong business justification, which should be specified in the policy. As Whole Foods demonstrates, blanket restrictions are highly suspect, so policies should be narrowly tailored to those times and locations where they are necessary to protect the employer’s valid business interests.
Sean Killian is an Associate in Locke Lord’s Dallas office. He can be reached at email@example.com.