The New Year has begun with a knock on your door: “We are from the NLRB, and we are here to help.” Do not continue to assume that you can pretend no one is home simply because your company is non-union. The Board continues to assert itself as an active stakeholder in your operations, and 2016 may indeed leave you scratching your head.
On December 24, a Board majority concluded that a work rule contained in Whole Foods’ employment handbook prohibiting the recording of company meetings without approval violates the NLRA. The Board concluded that such a restriction could prevent employees from engaging together in workplace activities such as discussing the terms and conditions of employment and unionization. Noting that “photography and audio and video recording at the workplace are protected under certain circumstances,” the Board held that the rule amounted to a prohibition of protected, concerted activity “such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment-related matters.” Ultimately, Whole Foods was ordered to discard the rule. Without providing specific guidance, the Board implied that a less restrictive policy may be lawful. Further, the Board did not address how their ruling conflicts with states, like Florida, that make it a crime to record others without their consent.
Think about what you just read for a second. You may no longer be able to issue a blanket policy that requires your employee get approval before video recording or photographing at your worksite. That would have sounded absurd a few short years ago. Let’s see if a federal court is asked to review this decision. I predict there is more to come from the NLRB in 2016.