Articles Posted in Employee Rights

On June 1, 2017, the U.S. Court of Appeals for the Second Circuit, which covers Connecticut, New York and Vermont, upheld a National Labor Relations Board (“NLRB”) finding that Whole Foods Market Group, Inc.’s no-recording policy was overbroad and violated the National Labor Relations Act (“NLRA”).

In Whole Foods Market Group, Inc. v. NLRB, Whole Foods’ employee handbook contained a provision that prohibited employees from recording conversations, phone calls, and meetings, without first obtaining managerial approval.  The court concluded that this no-recording policy violated the NLRA.  The NLRA deems it an unfair labor practice “to interfere with, restrain or coerce employees in the exercise of their rights [to, among other things, engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection.]  Whole Foods insisted that its policy was not intended to interfere with employees’ rights to engage in concerted activity or to prevent them from discussing their jobs, and that it was merely a general prohibition against recording in the workplace.  Whole Foods argued that its policy was “to promote employee communication in the workplace” by assuring employees that their remarks would not be recorded.

The Second Circuit found, however, that the seemingly neutral policy was overbroad and could “chill” an employee’s exercise of rights under the NLRA.  In other words, the policy prohibited recording regardless of whether the recording involved an exercise of those rights.  As a result, “’employees would reasonably construe the language to prohibit’ recording protected by [the NLRA].”  Despite finding that Whole Foods’ policy violated the NLRA, the Second Circuit said that “[i]t should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the [NLRA].”  Such a policy might be acceptable if it was narrow in scope, and furthered a legitimate safety concern.

As many individuals have learned the hard way, their postings on social networking sites are generally not private.  It comes as no surprise that employers routinely check the web for postings or other information concerning current or prospective employees. In the last few years, using the web to perform informal background checks has increased significantly. To make their searches easier, many employers have begun requesting social media user names and passwords of their prospective and current employees.  Currently, there is no federal law prohibiting such a practice.  This may change with the Social Networking Online Protection Act (“SNOPA”), which was introduced in 2012 by Representative Eliot Engel (D-NY) and Representative Jan Schakowsky (D-Ill).

Although the bill went nowhere in 2012, the bill was reintroduced earlier this month on February 6, 2013.  SNOPA seeks to prohibit employers and others from requiring or requesting that employees, job applicants and others provide their user names, passwords or other information needed to access personal accounts on social networking sites.  SNOPA also prevents discharging, disciplining or discriminating against any employee or job applicant who refuses to provide such information.  SNOPA does not, however, prohibit employers from taking adverse actions against employees or prospective employees for their social media activity.  So, SNOPA does not seek to protect individuals from themselves.  Regardless of whether SNOPA becomes law, employees still need to be aware of the consequences of their social networking activity.

SNOPA would also apply to schools and universities.

 

 

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