The National Labor Relations Board’s decision finding that an employer’s rules prohibiting recordings in the workplace were unlawful is an important one for employers and employees in Northeast Ohio. In Whole Foods Market, Inc., decided in late December 2015, the NLRB struck down the company’s two policies that broadly prohibited recordings without prior approval. The Whole Foods’ human resource executive who drafted the policies testified that those policies applied to all areas of every store, including the parking lot and the area in front of the store. They covered employees and managers alike during “worktime” and prohibited the use of any type of electronic device that could record images or conversations. These policies were very broad indeed.
The NLRB’s split decision held that the employer’s policies were unlawfully overbroad and would reasonably tend to chill employees’ exercise of their Section 7 rights. However, the NLRB stopped short of imposing a blanket prohibition against employers’ no-recording policies, stating that photography and audio and video recording in the workplace and posting them on social media are protected activities under Section 7 of the NLRA as long as the employees “are acting in concert for their mutual aid and protection and no overriding employer interest is present.” For example, the NLRB left undisturbed its previous decision in Flagstaff Medical Center where it held that the hospital’s rule prohibiting the use of cameras for recording images protected patient privacy interests and the hospital’s HIPAA obligations and therefore did not violate the NLRA.
After the decision in Whole Foods Market, employers in Northeast Ohio with no-recording policies should re-examine those policies to make sure that they are narrowly drafted to support a substantial business interest. Ohio employees should make sure they are aware of any no-recording policies in their workplaces and seek assistance through their unions, state and federal agencies and legal counsel to determine whether those policies are lawful or whether they should be challenged. Those employees working for employers with no such policies in place must still make sure that they comply with federal and Ohio laws regarding recordings of conversations and images.