Tuesday, February 2, 2016

Do You Prohibit Recording in the Workplace? Be Careful.

Employers may want to rethink policies that prohibit audio or video recording in the workplace in light of a recent ruling by the National Labor Relations Board (NLRB). The NLRB found that Whole Foods’s policy of prohibiting its employees from any audio or video recording in the workplace violated the National Labor Relations Act (NLRA), a law that allows workers to unionize. 

Under the NLRA, employers may not prohibit their employees from joining a union. They also cannot prohibit their employees from discussing unionization, distributing literature, or sending emails about unionization, although they can impose reasonable restrictions on when and where unionization discussions or distribution of literature takes place. Employers also may not implement policies that might discourage employees from discussing unionization.  

The lawsuit against Whole Foods alleged that its policy of prohibiting recording in the workplace discouraged employees from discussing unionization. Whole Foods disagreed, arguing that its policy permitted employees to discuss workplace issues with upper management candidly without fear of their conversations being recorded and these recordings given to their immediate supervisors.

The NLRB found that the ban on recording could discourage employees from discussing unionization, and therefore violated the NLRA. It found that prohibiting recording when speaking with upper management might have been justified, but prohibiting recording at anytime was too broad to accomplish this objective. The rules, the NLRB held, could be used to prohibit employees from recording workplace violations or from posting information about unionization on social media

There are a few things that employers can take from this ruling. First, employers are not forbidden from prohibiting recording in the workplace. However, they must have a good reason to do so. They should try to tailor their reasons for prohibiting recording to accomplish that objective. Overly broad rules that prohibit any kind of recording will likely violate the NLRA. 

Second, employers should make it clear to their employees that they are not prohibited from discussing or distributing information about unionization or workplace concerns. Whole Foods did not make its policies regarding its prohibition of recording clear to its employees, who interpreted these policies as a means of stifling their rights under the NLRA. 

Employers may want to consider contacting an experienced attorney for a review of their workplace recording policies.