Another Facially Neutral Employment Policy Bites the DustAbout a year ago, the National Labor Relations Board (NLRB or Board) struck down another neutral employer workplace rule – this one against making unauthorized recordings in the workplace. The NLRB’s decision just was affirmed by the federal appeals court in New York this month. It seems that yet another common sense rule bites the dust.

The Policy

The employer Whole Foods Market had a policy which prohibited workplace recordings, no matter what the subject matter of the recording was. Actually, the company had two related rules in its employee handbook: One against the recording of company meetings without prior approval from management, and the second against any recording in the workplace without similar prior approval.

The Company’s Position

Whole Foods included the policy in its handbook for reasons unrelated to employee labor relations rights. The motivation was to encourage employee participation and involvement at work, and the company believed that employees taking videos or recordings of each other would discourage involvement. The company asserted in the legal proceedings that it believed that allowing recording in the workplace actually would have a negative impact on employee or union organizing activity, not the other way around. Whole Foods’ position thus was that its no-recording policy did not violate its employees’ rights to act collectively under the National Labor Relations Act (NLRA).

 The Board’s Position

The NLRB’s stated position is that a work rule is unlawful “if it would reasonably tend to chill” employees in their exercise of protected concerted activities under Section 7 of the NLRA – basically those activities that employees do together to address issues in the workplace. If the rule explicitly prohibits such activities, it of course is unlawful. If it does not prohibit lawful union activity explicitly, it still is unlawful if (1) employees reasonably would construe the rule to restrict their rights, (2) the rule was adopted in response to group activity, or (3) the rule was applied to restrict group activity. In this case, the Board’s position was that lawful recording could include documenting unsafe work practices, discussions about terms and conditions of employment, inconsistent application of work rules, picketing, or evidence for a later legal proceeding.

The Board also had a problem with the breadth of Whole Foods’ policy. The Board implied that the policy might be acceptable if it was more narrowly drawn so that employees would understand that lawful recording under the NLRA was not prohibited. Moreover, the Board noted that Whole Foods’ policy did not differentiate between recordings made in nonworking areas and during nonworking time, which often is the analysis applied to employee nonsolicitation rules.

The Final Ruling

The federal appeals court in New York just agreed with the NLRB this month. The court stated that the core question is whether the “employees would reasonably construe the language to prohibit protected activity.” Applying a deferential standard of review to the NLRB’s position on this issue, the appellate court then affirmed the earlier Board decision. The appellate court emphasized further, however, that a more narrowly tailored policy could be lawful. For example, a policy restricting recordings that violated patient rights, constituted employee harassment, or disclosed trade secrets of the company perhaps could be lawful.

Why This Matters to You

Facially neutral employment policies will continue to be under attack by the NLRB, at least for a while. So, check your policies. The NLRB continues to be active in this area and is making it clear it will go after any neutral policies that may chill Section 7 rights, especially those policies that restrict communication or group activity in any way. These policies can include unauthorized recording bans, as well as nonsolicitation rules, email use prohibitions, social media restrictions, and even simple attendance policies if they interfere with lawful group activity.

And one other bit of advice. Don’t say anything to your employees that you do not want recorded!