Proceed with Caution: The NLRB Strikes Down Workplace Rules Prohibiting Negativity and Gossip

by Andrea De León

On April 1, 2014, the National Labor Relations Board (the Board), in Hills and Dales General Hospital,found that policies prohibiting negativity, gossip, and negative representation of the employer violate the National Labor Relations Act (NLRA). Under Section 8(a)(1) of the NLRA, it is “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the Act].” Section 7 spells out employees’ rights to organize, bargain collectively, and engage in other concerted activities for the purpose of collective bargaining or mutual protection.

The Board and the Administrative Law Judge (ALJ) agreed that the policies in question had not been applied in response to, or to restrict, protected activity; the only question before the Board was whether employees would reasonably construe the policies’ language to prohibit Section 7 activity. Therefore, the Board applied the first prong of the Lutheran Heritage test, which states that if a work rule does not explicitly restrict Section 7 activity, it will still be found unlawful if employees would reasonably construe the language to prohibit Section 7 activity. Under this test, the Board found the Hospital’s use of conduct policies prohibiting “negative comments” and “negativity and gossip,” as well as the requirement that employees “represent [the Hospital] . . . in a positive and professional manner in every opportunity,” to be per se unlawful.

The Board has maintained an activist interpretation of Section 7 in an effort to change vague and overly broad rules that greatly restrict freedom of speech in the workplace. This decision has made it clear that the Board intends to broadly interpret the NLRA to keep employers from circumventing the prohibition against restrictions on employees’ right to organize. The Board most notably demonstrated this in the Hills and Dales General Hospital decision by overruling the ALJ’s dismissal of the complaint as to the policy requiring employees to “represent [the Hospital] in a positive and professional manner.” The Board reasoned that employees would reasonably view this language as restricting them from engaging in any protected public protests of unfair labor practices, particularly when considered in conjunction with the other unlawful rules. Following this line of logic, employees could interpret the policy to mean that they are prohibited from protesting any terms or conditions of their employment, something that is clearly protected by Section 7 but would not necessarily be a “positive” way to represent an employer.

By ruling in this manner, the Board has warned employers of just how far they can go in restricting gossip and negativity in the workplace. Policies that may aim at maintaining a positive work environment may be used to discharge an employee for making negative comments. Employers will have to come up with ways to address their businesses’ needs without also restricting employees’ rights to critique and stand up against terms or conditions of their employment.

The full NLRB decision can be found here.

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