Employers Can't Prohibit All Recording at Work

Now that word is out that the National Labor Relations Board (NLRB) prohibits employers from imposing across-the-board no-recording policies, unionized and nonunionized businesses alike are trying to figure out when they may prohibit recording at work. 

On Dec. 24, 2015, the board decided that Whole Foods Market Group violated the National Labor Relations Act (NLRA) by banning workers from recording team meetings with this policy:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA [personal digital assistant], digital recording device, digital camera, etc.) unless prior approval is received from your store/facility team leader, regional president, global vice president or a member of the executive team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

The ban, according to Whole Foods, was intended to encourage honest, anonymous discussion by employees about store management during town hall meetings with regional management leadership and without store management present. It also was intended to foster candor during store meetings and team meetings. Likewise, no recordings were permitted during peer reviews of appealed termination decisions, also acting to encourage employees to speak up.

The NLRB ruled that employees could  reasonably construe the ban to prohibit protected concerted activity under the NLRA (Whole Foods Market Group Inc., 363 NLRB No. 87).

“The NLRA applies to union-free employees as well as the unionized workforce, so HR professionals must have basic knowledge of NLRA principles for all workforces,” reminded Michael Lotito, an attorney with Littler in San Francisco and co-chair of the firm’s Workplace Policy Institute.

Permitted Bans on Recording

So, when is a ban on all recordings permitted? Not often.

Christopher Feudo, an attorney with Foley Hoag in Boston, said that the employer would need to invoke a legally protected privacy interest, like patient privacy over medical information, to prohibit recording.

Also, if an employer is in a state that prohibits nonconsensual recording, the employer may be able to maintain a policy banning recording under state law. 

“The NLRB rejected Whole Foods’ appeal to state laws banning nonconsensual recording because the policy in question did not limit the restriction to states with those bans; it applied companywide,” Feudo said. “Moreover, Whole Foods’ rules made no reference to state laws banning nonconsensual records.”

If employers have blanket bans on the use of cameras, those likely need to be changed as well, he added.

Brian Garrison, an attorney with Faegre Baker Daniels in Indianapolis, said that other compelling interests that might justify a ban on recording include for purposes of confidentiality regarding:

• Trade secrets or other proprietary material.
• Guest, customer or vendor information.
• Financial information.

“A rule is more likely to pass NLRB scrutiny if it explains why recording is prohibited, what cannot be recorded and, if possible, identifies specific times or places when recording is prohibited,” Garrison added.

When to Allow Recording

Employer policies might have to permit recording in a variety of circumstances, Lotito noted, including:

• During an investigatory interview when the employee reasonably believes he or she may be disciplined.
• When a group of employees are challenging a workplace policy, practice or decision and are fearful of retaliation.
• When employees are engaging in a mass protest.

“Of course, a company might conclude that such a policy might be a terrible idea, as it is so specific it invites recordings,” he noted.

“General employee privacy concerns will not pass the board’s new rule,” M.C. Miller and Gregory Robertson, attorneys with Hunton & Williams in Richmond, Va., wrote in an e-mail. “Instead, employers will likely be required to point to something industry-specific—such as the health care industry’s patient privacy concerns—to justify a rule prohibiting workplace recordings.”

‘Savings Clause’

A general clause stating that a no-recording policy does not infringe on employees’ rights under the NLRA probably won’t be enough to save the policy from being struck down.

In other handbook contexts, “the board has been clear that the policy at issue has to be clear and offer concrete guidance to the reasonable employee,” Lotito said. “Telling someone they have the right to engage in concerted activity is like speaking Greek to most people, who will say: ‘What does that mean?’ So, I think you have to give examples.”

Guesswork

Would the NLRB have accepted Whole Foods’ policy if it had been worded differently?

Lotito said, “Maybe it could have survived if there were examples of acceptable and nonacceptable recordings. Maybe.”

While employers can make educated guesses about what bans on recording are still permitted, Feudo remarked that the Whole Foods decision “is problematic because it does not provide a road map for what a lawful policy restricting workplace recordings would look like.” In other words, the educated guesses are exactly that: guesses.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.