Wednesday, January 8, 2014

Tread lightly if banning workplace gossip, says NLRB Judge

I recently came across a blog post that answered the question of how to deal with workplace gossip. One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute [pdf].

Laurus distributed a no-gossip policy to its employees. Among other non-work-related prohibitions, the policy prohibited employees from “talking about a person’s professional life without his/her supervisor present.” It also bans any discussion of one’s personal life outside of one’s presence, any disparaging comments or criticism of another, or the creating, sharing, or repeating of rumors about another or of information that could damage another’s reputation or credibility.

The ALJ concluded that this policy was vague and overly-broad, and therefore illegal under Section 7 of the National Labor Relations Act.

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 Section 7 activity, and violates Section 8(a)(1).
It’s been argued that the private workplace is where free speech goes to die. And it’s true that employees in the private sector do not have free-speech rights. Yet, the NLRB, through its activist interpretation of Section 7’s protected concerted activity rights are trying to change the rules. 

The no-gossip rule in Laurus Technical Institute was innocuous. On its face, it was attempting to cure the corruption, distraction, and moral-sapping caused by gossip among employees. No employee could reasonably read that policy to affect discussions about wages, hours, and other terms and condition of employment. Yet, the ALJ still used Section 7’s reach to invalidate the rule.

Until the NLRB reaches a more reasonable stance on this issue, employers need to tread carefully, and consult with counsel, about any policy that reaches workplace speech. In the meantime, if gossip among employees is a pervasive problem harming your workplace, but you are wary about being in the NLRB’s crosshairs, consider training your employees about the evils of gossip and the meaning of a respectful workplace. This training will likely pay a better dividend than a policy statement in a handbook that most employees probably ignore, or never read in the first place.