Whole Foods’ No Cell Phone Recording Policy: The Devil is in the Details

Fellow Ohio attorney Jon Hyman, author of “Ohio Employer’s Law Blog” recently dove deep into the footnotes of the Whole Foods decision and resurfaced with an excellent, albeit frightening, analysis of the Board’s thought process. Footnotes 7 and 9 may provide a peek into the Board’s future desire to, as Jon says, “stretch the definition of ‘concerted’ to the point of non-existence.”

Fn 7. [W]e would not characterize recording or photography as a solitary nonconcerted act encompassing a “limited scope of protected activity.”…

Fn 9. [A]ny act of recording by a single employee that forms part of, or is undertaken in furtherance of, a course of group action constitutes concerted activity within the meaning of Sec. 7. Even in the absence of a group action, activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.

Now for Jon’s takeaway: This case has implications well beyond camera bans. Consider, for example, employee social media activity. If, as the Board suggests, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted?

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 maustin@ralaw.com.

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