NLRB Strikes Down Workplace Photo/Video Policy and Arbitration Policy
By Sydney S. Hu
January 12, 2016
The National Labor Relations Board ("NLRB") has continued its trend of restricting commonplace employment policies and ended 2015 by striking down two more policies it considers overbroad and ambiguous. We have highlighted these policy-related concerns in previous e-lerts. See Starting the New Year Right: a 2015 Employment Law Checklist, Seven Company Handbook Policies Drawing Scrutiny, and The Holidays are a Time for Giving: new policies, that is!.
Last month, in Whole Foods Mkt., Inc., 363 NLRB No. 87 (Dec. 24, 2015), the NLRB struck down a policy prohibiting photography and audio and video recording in the workplace without prior management approval. Despite the employer's reasoned concern that allowing unfettered recording in the workplace would "chill" free speech, particularly during meetings designed to allow employees to voice their opinions without the presence of management, the NLRB made clear that there are instances when making recordings in the workplace is protected under the law. Because the policy did not distinguish between recordings of protected and unprotected activities, the NLRB held it unlawful.
In a separate decision regarding arbitration agreements, Amex Card Servs. Co., 363 NLRB No. 40 (Nov. 10, 2015), the NLRB reaffirmed its position, notwithstanding rejection of that position by appellate courts, that an employer violates the National Labor Relations Act ("NLRA") by requiring covered employees to waive their rights to file joint, class, or collective claims addressing their working conditions against their employer in any forum. In addition, the Board found the Amex arbitration policy unlawful because it was ambiguous about whether employees have the right to file a charge with the Board or to access the Board's processes.
While these decisions do not wholly prohibit limiting recordings or having arbitration agreements, they do demonstrate the critical importance of having unambiguous and detailed policies that reflect the NLRB's ever-expanding requirements.
Should you have any questions about revising your policies, or any other questions about your employment policies, please contact an Elarbee Thompson attorney.