Monday, January 4, 2016

NLRB champions the lone wolf in latest protected concerted activity decision

In Whole Foods Market [pdf], the NLRB held that the employer’s rules prohibiting employees’ use of recording devices in the workplace violated their rights to engage in protected concerted activity under the National Labor Relations Act.

The unlawful policies read as follows:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received.…

The company’s attempt to save the policy by arguing that the purpose behind the policy was to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded” failed, because prohibited all workplace recordings, and did not differentiate between those protected by section 7 and those not so protected.

In and of itself, this decision is noteworthy for its impact on workplace recording policies. Yet, as is often the case in legal opinions, the devil is in the details, and the details are found in the footnotes. In this case, employers need to pay attention to footnotes 7 and 9, which stretch the definition of “concerted” to the point of non-existence.

[W]e would not characterize recording or photography as a solitary, nonconcerted act encompassing a “limited scope of protected activity.” …

[A]ny act of recording by a single employee that forms part of, or is undertaken in furtherance of, a course of group action constitutes concerted activity within the meaning of Sec. 7. Even in the absence of group action, activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.

This case has implications well beyond camera bans. Consider, for example, employee social media activity. If, as the Board suggest, employee intent is the measuring stick for whether a lone employee’s activity is concerted, then any employee’s solitary social-media post can be considered concerted merely by the employee stating an intent to initiate or induce group action. And, since social media is inherently social (i.e., group in nature), doesn’t this test suggest that all such activity is concerted.

I am worried about, and bothered by, the implications of a rule that implies that concerted lies in the eyes of the utterer. And you should be, too.