Policy banning workplace recordings unlawful

Here we go again!  The National Labor Relations Board (NLRB) (the activist agency that declared many common employer policies meant to establish professionalism, workplace cooperation and congeniality to be unlawful) has done it again.  In late December 2015, the NLRB ruled that Whole Foods Market policy prohibiting the recording of conversations in the workplace violated Section 8(a)(1) of the NLRA.  The employee policies were part of general guidelines (from HR) that applied to all the employees and applied to any electronic device that may be used to record images or conversations.  It covered all areas of the store, as well as the parking lot.

Two policies were found unlawful.  The first policy prohibited the recording of company meetings without prior approval from the store management.  The second policy prohibited all recording in the workplace without similar approval.  The company’s stated purpose for the rules were to encourage open conversation, and to eliminate the chilling effect that happens when someone is concerned that conversations are being secretly recorded.

As in similar cases, the Board concluded that the rules would reasonably be interpreted by employees to prohibit them from engaging in Section 7 activity (such as recording picketing, documenting hazardous conditions, publicizing issues related to terms and conditions of employment).  Net result – blanket no recording rules in an Employee Handbook  will be likely be declared illegal, unless there is a better employer justification.  Employers need to create narrowly crafted policies designed to protect valid business justifications (such as trade secrets, confidential info, HIPAA concerns, wiretapping protections).

In Florida, two party consent is needed for recording a conversation; however, in New York and other states, a person can record a conversation as long as the individual doing the recording is a party to the conversation.  Whole Foods has appealed the decision, so stay tuned.  Kathleen M. McKenna, from Proskauer Rose LLP is the attorney for Whole Foods.

Consultstu LLC provides fractional HR services to small/mid businesses, and helps companies minimize HR costs and improve HR efficiency.  We deliver customized HR solutions that provide protection from expensive HR mistakes and strategies to improve employee engagement. Have a question – call us at 727-350-0370, or email at [email protected].

HR Categories
1095C form300 Log401(k)8(a)(1)AccommodationAffordable Care ActAmericans with Disabilities ActArbitrationARPAAuditsBackground screeningBilingualBonusesBusiness ExpensesCannabidiol (CBD)CDCCDLCFPBcharityChild laborCHIP NoticeChristmas partyClearinghouseCOBRACommercial Motor Vehicle DriverCompany CultureCompany PropertyCompensationComplianceConcerted ActivityCONNECTConstructionconsultstuConsultstu TeamContagious diseaseCoronavirusCraft BeerDepartment of LaborDirect ThreatDisabilitiesDiscriminationDOTDownsizing and RestructuringDress CodeDriversDrug and AlcoholDrug Free WorkplaceE-VerifyEEO-1 FormEEOCEmployee benefitsEmployee HandbookEmployee IllnessEmployee InjuryEmployee MisconductEmployee PoliciesEmployee RecognitionEmployee ReferralEmployee RightsEmployment PosterERISAEssential functionsExecutive OrderExempt EmployeeExit InterviewFair Credit Reporting ActFair Labor Standards ActFall ProtectionFederal ContractorsFFCRAFinancial Well-beingFirearmFitness for DutyFlorida rulesFluencyFMCSAFMLAForm 5500Form W-4Fractional HRFTCGender Non-conformityGeneral HR QuestionsGoal SettingGPSGroup Health InsuranceHarassmentHiringHolidaysHR ComplianceHR CostsHR ResourcesHR softwareHSAHuman ResourcesHuman TraffickingI9 FormImmigrationIndependent ContractorIndividualized AssessmentInjury StatisticsInsuranceInterviewsInvestigationsIRSITAJob DescriptionJob PostJoint EmployerK1Leave of AbsenceLeaving a PEOManagementManagerMedical ExamsMedical Marijuanamental healthMilitary AppreciationMinimum WageMoraleNational OriginNew HireNLRBNo-match letterNon-complete AgreementsOnboardingOpioidsOPTOSHAOutplacementOvertimePaid LeavePay CardsPay or PlayPaycheck Protection ProgramPayrollPayroll Protection ProgramPerformance Improvement PlanPerformance ReviewPersonnel FilePost offer medical questionnairePostersPregnancyPublix Immigration CertificationReasonable AccomodationRecall LetterRecord KeepingRecruitingReligionRemote employeesRestaurantsResumeRetaliationRetentionRetirementRewardsRisk ManagementSafetySalaried employeesSBASection 7 RightsSelf AppraisalSick LeaveSMART goalsSocial MediaSocial Security cardStart upTaxesTemporary EmployeeTerminationTipped EmployeesTitle VIITPD BenefitsTrainingUnemploymentUniformsUSCISVaccinesVolunteerW2W4Wage and HourWellness programWork from HomeWorkers CompensationWorkplace MonitoringWorkplace ViolenceWrap Plans
Show All Categories
Show Less Categories
Archives
Need on-going HR support?
We have affordable HR retainers that offer a unique alternative to full HR outsourcing or the hiring of a full time HR employee. We design unique solutions to match your business strategy and budget. We have a proven track record of helping companies from many industries. We listen and probe to understand your needs and goals, before we offer recommendations and realistic solutions.
Contact Us Now