By Kelline R. Linton,
In a recent decision, the National Labor Relations Board (“NLRB”) ruled that a “no gossip” work policy violated federal labor law (Hill and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014)).
Specifically, the policy provided:
• Employees would not make negative comments about their fellow team members and would take every opportunity to speak well of each other.
• Employees would represent their employer in the community in a positive and professional manner in every opportunity.
• Employees would not engage in or listen to negativity or gossip. Employees would recognize that listening without acting to stop it is the same as participating.
The NLRB concluded that these rules were overbroad and ambiguous, and could be interpreted by employees as prohibiting protected activity.
This decision is the latest in a series of recent rulings where the NLRB has targeted customary and apparently uncontroversial work rules that employers have long imposed because these rules may arguably interfere with employees’ protected activity. For example, in MCPc, Inc., 360 NLRB No. 39 (2014), the Board invalidated a company’s handbook policy that prohibited the dissemination of confidential information within the company, including personal or financial information, because the employees could reasonably construe the rule to prohibit discussion of wages or other conditions with their co-workers. Similarly, the NLRB also found a non-disclosure rule and a rule requiring employee courtesy to be unlawful for the same reasons (Quicken Loans, Inc., 359 NLRB No. 141 (2013); Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012)).
What does this mean for employers? These recent rulings follow the current NLRB’s pattern of scrutinizing non-union workplace policies for any language that employees could reasonably construe as limiting their right to engage in “concerted activities for their mutual aid and protection.” We recommend employers review their current policies to determine whether they “might” be misinterpreted to prohibit any protected activity, and then perform a cost-benefit analysis in light of the benefits and risks associated with that policy. We are available if you have any questions or need assistance in reviewing your policies and determining possible legal risks.