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Ready for your close-up? Barring video recording at work may be ULP

Kendall Hoechst, Amy M. McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Kendall Hoechst

The National Labor Relations Board (NLRB) is a federal agency vested with the power to prevent and remedy unfair labor practices (ULPs) committed by employers. In the past few years, the NLRB has broadly construed employees’ rights to engage in concerted activities and has struck down many employer policies that tend to “chill” protected conduct in a variety of contexts. A recent NLRB decision upheld by the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) suggests this trend is continuing.

Section 7 rights generally

Section 7 of the National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” as well as the right “to refrain from any or all such activities.” Employers are prohibited under Section 8(a)(1) of the NLRA from interfering with or restraining their employees’ Section 7 rights. In short, if an employer’s policy tends to chill, or dissuade, employees from exercising their Section 7 rights, the employer has committed a ULP under federal law.

Even if an employer’s policy or rule doesn’t explicitly restrict protected activity, the rule is considered a violation if:

  1. Employees would reasonably construe the language of the policy to prohibit protected activity;
  2. The rule was promulgated in response to union activity; or
  3. The rule has been applied to restrict the exercise of protected rights.

The employer’s intent is not always relevant.

In recent years, the NLRB has taken special interest in protecting employees’ Section 7 rights and has been interpreting the NLRA more and more broadly, particularly when it comes to employees engaging in “concerted activities.” A recent NLRB decision upheld by the 2nd Circuit suggests that focus will continue, at least for now.

Whole Foods case

Whole Foods Market maintained rules prohibiting any recording in the workplace—including conversations, phone calls, images, and company meetings—without prior management approval. The rule applied to all areas of every store, to employees and managers alike, and to all electronic devices. Two unions representing Whole Foods employees objected to the rule and filed a ULP charge with the NLRB.

A Whole Foods representative testified that an essential part of the company’s “core values” and “culture” is allowing employees the freedom to speak up and speak out on many issues, work-related or not. Annual regional “town hall” meetings are held without store management present, and the comments, but not the identities of the employees who speak, are later given to management. Whole Foods also periodically holds store meetings and team meetings at which employees voice criticism but are not identified so as not to disrupt team harmony.

Furthermore, Whole Foods suggested that its internal processes for termination decisions and meetings at which employees request assistance with issues involving confidential matters, such as financial need, death or illness in their families, or personal crises, would be adversely affected without the no-recording policy. In other words, in Whole Foods’ view, the policy was designed “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue, and an atmosphere of trust.”

Despite the company’s justifications for its norecording policy, the NLRB found that the rule would reasonably be construed by employees to prohibit them from engaging in Section 7 activity. The NLRB reasoned that photography and recording in the workplace as well as work-related posts on social media are protected by Section 7 if employees are acting in concert for their mutual aid and protection and there is no overriding employer interest against such conduct. Furthermore, in many past NLRB cases, photographs or recordings, often made covertly, were an essential element in vindicating the underlying Section 7 right.

The 2nd Circuit upheld the NLRB’s decision, agreeing that Whole Foods’ rule was overly broad. For example, the rule could prevent employees from recording images of picketing or from documenting unsafe workplace conditions without management approval. The court held that the language of the policy could chill employees’ exercise of their Section 7 rights because the rule, as written, wasn’t limited to controlling activities in which employees don’t act in concert.

What does this mean for Vermont employers?

Employers should review any policies that address employees recording activity in the workplace or posting work-related content on social media and consider whether they are open to a broad interpretation along the same lines as Whole Foods’ policy. It doesn’t matter what the potentially good intentions behind the policy are.

The 2nd Circuit noted that not every no-recording policy will infringe on employees’ Section 7 rights, explaining that it should be possible to craft a policy that places some limits on workplace recording that doesn’t violate the NLRA. The court didn’t provide more specific guidance than that general assertion, but it suggested that concerns about patient privacy in a hospital setting or safety policies for reporting unknown visitors could fit the bill.

While it’s possible that the Trump administration may set the pendulum swinging in the opposite direction, the future of NLRB enforcement is uncertain. For now, employers should continue to be wary of implementing or maintaining any policy that, broadly construed, could be seen as chilling employees’ Section 7 rights. The Whole Foods decision signals that the NLRB’s trend of broadly interpreting workplace policies is continuing.

Kendall Hoechst can be reached at khoechst@dinse.com or 802- 859-7042.

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