Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.
In Hills & Dales General Hospital [pdf] [an enhanced version of this decision is available to lexis.com subscribers], the NLRB found unlawful (most of) each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”
11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.
21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.
The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers com- plaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”
The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”
There are two points of note from this opinion:
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