The NLRB has reversed the ALJ in Whole Foods and held that audio and video recording by employees in the workplace cannot be prohibited except in very rare cases. Unless you are a hospital and need to protect the privacy of your patients or a manufacturer with a secret sauce, employees now have to be permitted to make audio and video recordings on the job.
The words of the Board’s majority say it all:
Photography 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…Such protected conduct may include, for example, 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. (emphasis added)
In Whole Foods, the company’s rule against recordings in the workplace was prefaced by a statement of the reason: to remove all barriers to a free and unfettered exchange of ideas. This, the Board said, was unlawfully ambiguous and a reasonable employee would believe that the rule would be used to chill concerted activity. Really!?
The Board’s rule is the chiller, freezing out free and unfettered exchanges of ideas in any workplace. When a supervisor seeks to have a coaching session with an employee and the employee sticks a cell phone camera in her face, she will not coach and the employee will not receive the benefit of her experience. What the employee gets is nothing because nothing will be said other than the most vanilla comments. There certainly will be no unfettered exchange of ideas.
This is statutory construction run amuck. My guess is that none of the Board members has ever run a business, had to make a payroll or needed to stimulate teamwork.
Hopefully, a Circuit Court of Appeals will return us to a reasonable perspective.