Apologies to Adele, but the National Labor Relations Board (NLRB) has whispered some words in my ear that tell a story employers won’t want to hear. People may say crazy things ― and the NLRB won’t let a “no-gossip” policy stop them.
Pssst, did you hear?
By now, most employers are probably familiar with the NLRB’s expanding scope of review over workplace policies, even in nonunion settings. From challenging social media policies to restricting the scope of investigation confidentiality statements, the NLRB is more likely to find violations if employers’ conduct policies appear overbroad and ambiguous and could be interpreted to restrict employees from discussing or complaining about any terms and conditions of employment.
That same analysis has recently been applied to a no-gossip policy. Last December, an NLRB administrative law judge (ALJ) issued a decision and recommended order determining that an employer violated § 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining an overly broad “no- gossip” policy, and subsequently suspending and terminating an employee for violating the policy, because her “gossip” was protected concerted activity.
Here’s how it all went down
Joslyn Henderson started working as an admissions representative at a technical school in 2007. In 2011, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment and retaliation. Later, the employer reprimanded her for talking about work issues and complaints with a manager outside her “chain of command.” Henderson was told that she could not discuss work issues with anyone except her supervisor, the HR director, or the CEO and that she would be terminated if she discussed work issues with other managers or any of her coworkers.
A short time later, the employer published a no-gossip policy that stated gossip would not be tolerated and employees gossiping about the company, an employee, or a customer would be subject to disciplinary action. The definition of gossip included talking about someone’s personal life when he wasn’t present; talking about a person’s professional life without a supervisor being present; making negative, untrue, or disparaging comments about other people; and creating, sharing, or repeating rumors about others.
Several months later, several of the school’s admissions representatives were replaced, and the HR director was fired. Henderson and two coworkers discussed the changes and exchanged their concerns about job security. Henderson called a colleague at another school to see if there was an opening for the terminated HR director, and during the conversation, she conveyed information about applying for jobs between the other school and some coworkers. There were a number of contentious issues at work in the following months, and then Henderson went out on medical leave.
While she was out, a coworker alleged that Henderson had solicited coworkers to leave their jobs, spoke negatively about the company and managers, and tried to instigate a work slowdown. When Henderson stopped by the facility to address a leave issue, she was notified that she was being suspended pending an investigation. She was terminated a short time later for “willful breach of company policies and counter-productive behavior,” including violating the no-gossip policy.
On review, the NLRB ALJ determined that the no-gossip policy violated the NLRA because it prohibited employees from speaking to coworkers about discipline and other terms and conditions of employment. According to the judge:
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.
Keeping in mind that even policies banning false, vicious, profane, or malicious statements have been deemed unlawful, the ALJ apparently had little trouble reaching her decision, especially since some of the underlying communications “arose out of mutual concern and real fear for job security.” In short, talking to coworkers about job security and other employment opportunities is “protected activity” under the NLRA.
Employers need to be aware of the expanding role of the NLRB and its new emphasis on protecting employee communications that have virtually anything to do with conditions of employment. Companies with no-gossip policies need to review them carefully in light of this decision. Otherwise, the NLRB may come knocking, and “baby, is that really what you want?”
Christopher J. Pyles is co-Chair of the Labor and Employment Law group and a member of the litigation team at Sulloway & Hollis, P.L.L.C. , practicing in the firm’s Concord, New Hampshire, office. He may be contacted at firstname.lastname@example.org.