By: Carol G. Schley, Clark Hill PLC

It is common for employers to include policies in their handbooks that prohibit employees from taking photographs and making recordings in the workplace.  The reasons for such policies can be varied, including employee privacy, protection of confidential and trade secret information, productivity and security concerns.  However, a recent decision from the National Labor Relations Board (“NLRB”) held that policies absolutely prohibiting this conduct violate the National Labor Relations Act (the “Act”).

The decision involved Whole Food Market Group, which maintained two written policies that prohibited photographs and recordings in the workplace.  The first policy prohibited recording of “conversations, phone calls, images or company meetings with any recording device” without prior company approval.  The reason given for this policy in the handbook was to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust….”  The second policy prohibited recording conversations in order to “eliminate a chilling effect on the expression of views” in the workplace.  At the hearing concerning whether these policies were lawful, Whole Foods’ sole witness, its global vice president for team member services, testified that Whole Foods’ employees were prohibited from recording a conversation without prior company approval, regardless of whether the employee is engaged in protected concerted activity.  The vice president further testified such policies were necessary in order to not “chill the dynamic” of company interactions.

At the hearing level, the NLRB judge found that the written policies did not violate the Act.  However, on appeal, the NLRB found that the policies were unlawfully over-broad, as they could reasonably be construed to chill the employees’ ability to exercise their rights under Section 7 of the Act.  These rights include, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of [the employee’s] own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In finding the policies unlawful, the NLRB Board held that, “[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”  Examples of such protected activity provided by the Board included, “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment–related actions.”  Because Whole Foods’ rules “do not differentiate between recordings protected by Section 7 and those that are unprotected,” the Board found they were overly broad and unlawful.  The Board further rejected Whole Foods’ reasons for the rules, i.e., to promote open communication in the workplace, as insufficient.

It is important to note that the Section 7 rights referenced in the Whole Foods case do not just apply to unionized workplaces, but to all employees regardless of whether or not they belong to a union.  Accordingly, the holding of Whole Foods applies to employers in general.  Thus, any workplace policies that totally prohibit any photographs or recordings in the workplace without exception are unlawful in the eyes of the NLRB.  In order to be compliant, such policies must provide exceptions for rights afforded to employees under the Act.  If your employee handbook has not recently been updated, it is advisable to have an attorney review it to ensure it complies with the rulings of the NLRB, and is otherwise compliant with the numerous laws that govern the employment relationship.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2016.