A few weeks ago, the NLRB ruled that non-union Whole Foods’ workplace policy that prohibits employees from recording conversations or taking pictures with their phones was unlawful. The Board thought this policy stifled open conversation. Ironically, Whole Foods said the policy was, in fact, to encourage open conversation because people may be less frank if they are being recorded. Before companies change their handbook policies to comply with this ruling, let’s first allow the ruling to be found lawful by other agencies and courts.
For example, the Board’s ruling may not stand up when applied to healthcare related companies and those covered by HIPAA. Likewise, educational institutions governed by FERPA laws may be allowed to continue banning recordings and pictures at work. Individual state’s trade secrets laws may also have an impact on the legality of the Board’s decision. So will states whose laws ban nonconsensual recording of another person.
For companies that want to make an immediate change to their recording / photograph policies, the Whole Foods’ policy failed because it prohibited all recordings and all photographs, not just those left unprotected by Section 7 of the National Labor Relations Act. While some readers may think a “quick fix” would be to have a blanket ban with the caveat that the policy is not intended to interfere with an employee’s Section 7 rights, these types of catchall provisions have been found unlawful.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.