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Balancing Talk around the Water Cooler with the NLRA

By January 15, 2014July 23rd, 2018Uncategorized

This is the first of a special two-part series featuring advice from our employment attorney, Renee Mielnicki, to help ALL employers — unionized and non-union — understand their obligations and rights under the National Labor Relations Act (NLRA). 

By Renee Mielnicki, Esq.

Most companies have at least one employee that I would call a “stirrer” or “instigator.”  They enjoy gossiping about anyone and everyone at work.  They make innuendos, negative comments and spread scandalous stories about others’ personal lives. Every conversation you have with that person leaves you with a bad impression of whomever they are speaking about.  Others in your workplace may also be doing the same thing, yet not to this degree.  Then, before you know it, you are working in a sea of backstabbing negativity that feels more like junior high than a professional place of business.  Even if gossip doesn’t reach to this level, most employers would agree that any amount of gossip in the office amongst co-workers has a negative effect on morale and productivity.  Co-workers talking negatively about other co-workers, whether it be about their personal or professional issues, often leads to high employee turnover.

In an effort to combat this problem, some employers have instituted a “No Gossip Policy” to stop the negative chatter at the water cooler. While it makes sense to proactively combat this  negative behavior, if these policies run afoul of the National Labor Relations Act (NLRA), there can be serious implications.

The NLRA is a federal labor law that protects the rights of both union and non-union employees who engage in “concerted activity.”  Simply put, the NLRA, which applies to almost all private employers, safeguards employees who act together to discuss their working conditions, such as their pay, hours, discipline issues, etc.   Under this law, employees have the right to make work-related complaints about their working conditions, including to their supervisor.  Any action taken by an employer to prohibit employees from engaging in these protected activities is illegal.

The National Labor Relations Board (NLRB) is a federal government agency that enforces the NLRA.  Its main focus recently has been whether the policy is so overly broad that it could be interpreted as restricting the exercise of rights that the NLRA guarantees.  For instance, in Alurus Technical Institute v. Joslyn Henderson, the following “no gossip” policy was struck down:

“Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. “Gossip” includes, among other things, talking about a person’s personal life when they are not present, talking about a person’s professional life without his/her supervisor present, and negative, or untrue, or disparaging comments or criticisms of another person or persons.”

In this particular case, this policy was cited as one of the reasons for the employee’s termination of employment.  The Administrative Law Judge found that this policy was so broad that it prohibited employees from speaking to co-workers about discipline and other terms and conditions of employment.  Since the employee had been terminated, the employer was ordered to reinstate her to her job with back pay.  It was also ordered to cease and desist the policy.

This case highlights the worst case scenario for violating the NLRA.  If an employee files a complaint with the NLRB, he or she cannot seek reinstatement or back wages unless the employee has been terminated.  Absent termination, the NLBR can simply strike the policy down.  In addition, the NLRA does not provide for penalties.  It only provides for the “make whole” remedies mentioned above.  However, the risks of having this type of policy, and then terminating an employee because of it, are not worth it due to the financial implications of the potential back pay and administrative time that would be spent fighting the NLRB.

When drafting a “No Gossip” Policy, employers must be specific about the type of gossip that they are prohibiting to avoid encroaching on protected activity. Unfortunately, little guidance has been issued with regard to these types of policies.  But, this doesn’t mean that employers have to feel like office gossip is the unavoidable evil or that it’s the only thing working overtime at the office.  Rather, focus on specifics to give employees clear notice of the types of negative comments forbidden and stay away from broad language or any restriction on the right to discuss or complain about working conditions.

If you question whether your Gossip Policy is legal or need help writing a policy on this matter, please contact us.