Apologies to Adele, but the National Labor Relations Board
(NLRB) has whispered some words in my ear that tell a story employers won’t
want to hear. People may say crazy things ― and the NLRB won’t let a
“no-gossip” policy stop them.
Pssst, did you hear?
By now, most employers are probably familiar with the NLRB’s
expanding scope of review over workplace policies, even in nonunion settings.
From challenging social media policies to restricting the scope of
investigation confidentiality statements, the NLRB is more likely to find
violations if employers’ conduct policies appear overbroad and ambiguous and
could be interpreted to restrict employees from discussing or complaining about
any terms and conditions of employment.
That same analysis has recently been applied to a no-gossip
policy. Last December, an NLRB administrative law judge (ALJ) issued a decision
and recommended order determining that an employer violated § 8(a)(1) of the
National Labor Relations Act (NLRA) by maintaining an overly broad “no- gossip”
policy, and subsequently suspending and terminating an employee for violating
the policy, because her “gossip” was protected concerted activity.
Here’s how it all
went down
Joslyn Henderson started working as an admissions
representative at a technical school in 2007. In 2011, she filed a charge with
the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment
and retaliation. Later, the employer reprimanded her for talking about work
issues and complaints with a manager outside her “chain of command.” Henderson
was told that she could not discuss work issues with anyone except her
supervisor, the HR director, or the CEO and that she would be terminated if she
discussed work issues with other managers or any of her coworkers.
A short time later, the employer published a no-gossip
policy that stated gossip would not be tolerated and employees gossiping about
the company, an employee, or a customer would be subject to disciplinary
action. The definition of gossip included talking about someone’s personal life
when he wasn’t present; talking about a person’s professional life without a
supervisor being present; making negative, untrue, or disparaging comments
about other people; and creating, sharing, or repeating rumors about others.
Several months later, several of the school’s admissions
representatives were replaced, and the HR director was fired. Henderson and two
coworkers discussed the changes and exchanged their concerns about job
security. Henderson called a colleague at another school to see if there was an
opening for the terminated HR director, and during the conversation, she
conveyed information about applying for jobs between the other school and some
coworkers. There were a number of contentious issues at work in the following
months, and then Henderson went out on medical leave.
While she was out, a coworker alleged that Henderson had
solicited coworkers to leave their jobs, spoke negatively about the company and
managers, and tried to instigate a work slowdown. When Henderson stopped by the
facility to address a leave issue, she was notified that she was being
suspended pending an investigation. She was terminated a short time later for
“willful breach of company policies and counter-productive behavior,” including
violating the no-gossip policy.
On review, the NLRB ALJ determined that the no-gossip policy
violated the NLRA because it prohibited employees from speaking to coworkers
about discipline and other terms and conditions of employment. According to the
judge:
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. Such an overly broad, vague rule or policy on
its face chills the exercise of § 7 activity and violates § 8(a)(1). A
reasonable employee would certainly view it as doing so.
Keeping in mind that even policies banning false, vicious,
profane, or malicious statements have been deemed unlawful, the ALJ apparently
had little trouble reaching her decision, especially since some of the
underlying communications “arose out of mutual concern and real fear for job
security.” In short, talking to coworkers about job security and other
employment opportunities is “protected activity” under the NLRA.
Bottom line
Employers need to be aware of the expanding role of the NLRB
and its new emphasis on protecting employee communications that have virtually
anything to do with conditions of employment. Companies with no-gossip policies
need to review them carefully in light of this decision. Otherwise, the NLRB
may come knocking, and “baby, is that really what you want?”
Source: HR
Hero
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