Over the past few years, the National Labor Relations Board has expanded its sphere of influence into the non-unionized workplace. In the guise of preserving workers’ rights under Section 7 of the National Labor Relations Act (which includes the broad right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection), the NLRB has:
- Invalidated a policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation,” because it could impede employees’ exercise of their Section 7 rights to protest working conditions (Costco, 358 NLRB No. 106);
- Found that a company’s blanket policy of requesting participants in an internal investigation to keep the investigation confidential improperly infringes on employees’ Section 7 rights (Banner Health, 358 NLRB No. 93);
- Weighed in on employers’ social media policies (NLRB reports); and
- Found a policy requiring employees to be courteous, polite, and friendly to customers to be overbroad and invalid (Karl Knauz Motors, 358 NLRB No. 164).
The NLRB has struck again, invalidating a “no-gossip” policy that prohibited, among other things:
- Talking about a person’s personal life when they are not present;
- Talking about a person’s professional life without that person’s supervisor present;
- Making negative, untrue, or disparaging comments or criticisms; or
- Creating, sharing, or repeating rumors or information that can injure another person’s credibility or reputation (Laurus Technical Institute, 360 NLRB No. 133).
Finding that the “no-gossip” policy “severely restrict[ed] employees from discussing or complaining about any terms and conditions of employment,” the Administrative Law Judge (whose findings the NLRB adopted), found that the policy “on its face prohibits protected activity.” More specifically, the ALJ found:
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.
Remarkably, the NLRB also found unlawful the company’s discharge of an employee purportedly for soliciting co-workers to leave their jobs and join a competitor. Although the Board did not credit the company’s asserted reason for the employee’s discharge, it went on to say that even if the company was being truthful, the employee’s discharge was still unlawful because during the same conversation when the discharged employee tried to solicit co-workers on behalf of a competitor, she also spoke negatively about the company and some of its managers.
All employers should recognize the NLRB’s continued emphasis on protecting employee communications, and be wary of restricting communications that in any way touch on terms and conditions of employment.