Video Policy in the Workplace: Court Says Whole Food Overreached

Whole Foods’ claimed that its policy barring employees from all unapproved recording in the workplace was in the best interest of the employees. But that didn’t stop the Second Circuit Court of Appeal from upholding a National Labor Relations Board ruling that the store’s policy ran afoul of the National Labor Relations Act (NLRA).

The Court confirmed the Board’s ruling that Whole Foods’ policy could be construed by employees as prohibiting the right to engage in Section 7 activity (i.e., “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…”).

Whole Foods argued that the policy was designed to protect employee rights by allowing them to speak freely while at work without concern of being secretly recorded.

While the Second Circuit’s ruling did not categorically bar all recording policies, its finding that the policy was “overbroad” highlights the need for careful drafting of employment policies that may place some limits on recording, while remaining narrow enough in scope to not run afoul of the NLRA.

Keep the Workplace Working

Employers should make sure they are familiar with the NLRA, and especially with Section 7 rights that it provides employees. It is important to remember that Section 7 rights apply to all employees, not just those who are members of an organized labor union. Also, the “concerted activity” that is protected by Section 7 covers a wide range of conduct that is implicated by multiple policies that may be present in employee handbooks. These policies must be carefully prepared, and supervisors and managers must be trained so an otherwise lawful policy is not enforced in a way that violates the NLRA.

Remember that in this instance the policy at issue was not an express ban on employee recordings, but a rule that employees could “reasonably construe” as a rule that effectually ban all recordings. Employers should be evaluating all of their employee policies using this standard.

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