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Be Wary of Policies Curtailing Water Cooler Banter

The National Labor Relations Board (“Board”) continues to strike down broad workplace policies – this time taking aim at a “No Gossip” policy they claimed violated employees’ rights to engage in protected activity under the National Labor Relations Act (“Act”).

In a case before an Administrative Law Judge (“ALJ”), Laurus Tech. Inst., 2013 NLRB LEXIS 766 (N.L.R.B. Dec. 11, 2013), the employer, a technical school, distributed a “No Gossip” policy to employees in an effort to force employees to communicate through the chain of command and stop chatter fueled by several employee firings.  The policy stated “Gossip is not tolerated . . . Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral[e], and overall satisfaction.”  The policy robustly defined gossip as:

1) Talking about a person’s personal life when they are not present

2) Talking about a person’s professional life without his/her supervisor present

3) Negative, or untrue, or disparaging comments or criticisms of another person or persons

4) Creating, sharing, or repeating information that can injure a person’s credibility or reputation

5) Creating, sharing, or repeating a rumor about another person

6) Creating, sharing, or repeating a rumor that is overheard or hearsay…

The ALJ looked at whether the rule “would reasonably tend to chill employees in the exercise of [the employees’] Section 7 rights.”  Under the Act, employees have the right to engage in protected concerted activity, such as unionization, called Section 7 rights.  Any rule that restricts this right is unlawful.  The Board has long-relied on a two-part test to analyze workplace rules.  First, any rule that explicitly restricts protected activity on its face is unlawful.  Second, any rule that does not explicitly restrict these rights but a) could be reasonably construed by employees to restrict protected activity, b) was created to prohibit protected activity, or c) was applied to restrict protected activity, is unlawful.

The ALJ quickly concluded the rule explicitly restricted employees’ exercise of their right to engage in protected activity on its face, concluding it was “overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment.”  The ALJ did not have to look further than the definition of “gossip” including “talking about a person’s professional life” and making “disparaging comments” to reach this conclusion.

This case is not surprising given the Board’s attack in recent years against rules involving dress codes, witness confidentiality, social media, and even employment-at-will policies.  However, it serves as a reminder to employers – including union-free workplaces – to seek competent legal counsel before creating broad-sweeping general policies.  With a newly-constituted Board and a new General Counsel seeking to make headlines, employers must be extra careful to stay under the Board’s radar.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.