Although most employers would agree that gossip in the workplace is detrimental to employee morale and productivity, banning it could be a risky proposition. In a recent decision, Laurus Technical Institute, NLRB ALJ, No. 10-CA-093934 (Dec. 11, 2013), a National Labor Relations Board (“NLRB”) Administrative Law Judge ruled that a non-union employer’s “no gossip” policy contained in its employee handbook violated the National Labor Relations Act (“NLRA”). Despite the fact that the employer’s workforce was not unionized, its “no gossip” policy fell under the purview of the NLRA because it implicated an employee’s right to engage in protected concerted activity by limiting an employee’s ability to discuss the terms and conditions of employment with other employees. While certain types of employee conduct may be regulated in the workplace, the rumor mill may not be one of them.
Details of the “no gossip” policy
The employer’s “no gossip” policy stated, in pertinent part:
Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction. It has the potential to destroy an individual and is counterproductive to an organization. Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility.
The policy defined gossip as:
Violations of the policy called for a written warning, with further disciplinary action—including termination if further incidents occurred.
Why was the policy unlawful?
The policy was challenged by a former employee who was disciplined and terminated, in part, for violating its provisions. In finding that the “no gossip” rule violated Section 8(a)(1) of the NLRA, the Judge held that the policy, on its face, prohibited protected concerted activity. Section 8(a) prohibits employers from interfering with an employee’s right to engage in concerted activity, which generally includes an employee’s right to discuss the terms and conditions of employment (i.e., wages, hours, or workplace conditions) with other employees or on behalf of a group of employees. Section 7 of the NLRA gives employees the right to engage in concerted activities for the purpose of collective bargaining or mutual aid and protection. As such, non-unionized employees may be protected as long as their activity is “concerted” and for “mutual aid and protection” and relates to a term or condition of employment.
In making a determination as to whether a rule or policy is unlawful, the appropriate inquiry is whether the rule and its prohibitions would reasonably tend to chill employees in the exercise of their Section 7 rights. If a rule does not explicitly restrict Section 7 activities, it may still be unlawful if one of the following factors is shown:
It is well established that an employer violates Section 8(a)(1) when it prohibits employees from speaking to coworkers about discipline and other terms and conditions of employment such as wages and benefits.
In Laurus Technical Institute, the Judge found that the “no gossip” policy was overly broad, ambiguous, and severely restricted employees from discussing or complaining about any terms and conditions of employment. The Judge explained that the scope of the policy’s definition of “gossip” was essentially an expansive ban against any discussion about one’s personal life when they are not present; professional life “without his/her supervisor present”; and any negative or “disparaging comments or criticisms of another person or persons.”
The Judge held that “[s]uch an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity, and violates Section 8(a)(1)” because “[a] thorough reading of this vague, overly-broad policy reveals that it narrowly prohibits virtually all communications about anyone, including the company or its managers. In fact, read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present.”
The Judge further explained that overly broad rules have been found to “inhibit employees from bringing work-related complaints to, and seeking redress from, entities other than the [employer] and restrains the employees’ Section 7 rights to engage in concerted activities for . . . other mutual aid or protection.”
What should an employer consider in crafting policies regulating employee conduct?
The NLRB has upheld policies as lawful that prohibit abusive and profane language, harassment, or conduct that is injurious, offensive, or coercive of coworkers or clients. In crafting such a policy, an employer should consider the following guidelines:
For now, employers should be cautious in regulating workplace speech because the NLRB is paying particular attention to policies and procedures contained in non-union employer handbooks. Employers may see more clarification on this issue, however, as Laurus Technical Institute has filed a notice of appeal to the NLRB.
Mike is the Chair of Obermayer’s Labor Relations and Employment Law Department and a member of Obermayer’s Management Committee. Mike is an accomplished attorney known for his tireless advocacy on behalf of...
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