[April 14, 2014] Employers often think, quite reasonably, that they may lawfully require employees to be positive at work. Indeed, why shouldn’t employees be required to be positive with colleagues and represent the company in a professional manner? Unfortunately, the National Labor Relations Board (“NLRB”) disagrees. Repeatedly, the NLRB has concluded that such “no negativity” policies violate workers’ rights, whether union or non-union.
For example, on April 1, 2014, the NLRB held that a Michigan hospital’s work rules banning negativity and gossip violated the National Labor Relations Act (“NLRA”). (This was not an April fool’s joke.) The work rules contained in the hospital’s Values and Standards of Behavior Policy required employees to:
- avoid “negative comments about … fellow team members,” including managers;
- “represent [the hospital] in the community in a positive and professional manner in every opportunity”; and
- “not engage in or listen to negativity or gossip.”
The NLRB concluded that the rules were too broad and could be interpreted by employees as prohibiting activity protected by Section 7 of the NLRA, which gives employees the right to engage in concerted activity. The NLRB also rejected the hospital’s argument that the rules were lawful because employees participated in drafting them. As a remedy, the NLRB ordered the hospital to immediately cease and desist from maintaining the challenged rules, give all current employees policy inserts reflecting the revisions, and post and distribute a notice to all employees about the ruling.
The next day, on April 2, 2014, the NLRB struck down similar rules in the employee handbook of a nationwide transportation management company. That company’s rules prohibited employees from:
- “discourteous or inappropriate attitudes or behaviors to passengers, other employees, or members of the public;”
- participating in “outside activities that are detrimental to the Company’s image or reputation”; and
- “conducting oneself during nonworking hours in such a manner that the conduct would be detrimental to the interest or reputation of the Company.”
The NLRB explained that employees could reasonably construe the rules as limiting their communications concerning employment, despite the presence of another provision in the handbook that notified employees of their union rights. Unfortunately, the NLRB noted that the “savings” clause was not sufficiently “prominent” in the employee handbook or located in close proximity to the challenged rules. As with the hospital case above, the NLRB ordered the employer to rescind the policies, provide handbook inserts to current employees to replace the policies, and distribute a notice about the ruling to all employees.
Many employers maintain social media and other policies similar to the policies at issue in these cases. In light of the NLRB’s continuing focus on such policies, employers (whether unionized or not) should consult with experienced counsel to review their policies and consider whether any changes may be appropriate.