In a recent ruling, the National Labor Relations Board (NLRB) has said that such policies requiring workers to be beacons of positivity violate federal law. Such rules of courtesy are in place to avoid the effects of a negative work environment, but in many cases, these rules aren’t winning anyone over to the company side.
The case involved a hospital, which was found guilty of violating federal law by requiring its workers to represent the hospital in a “positive and professional manner” at all times, including avoiding listening to negativity and gossip.
The hospital was not fined for its policy, but was required to change its policies to achieve compliance.
Audrey Mross, employment attorney at Munck Wilson Mandala in Dallas, says the NLRB is continuing to bear down on “courtesy” rules – rules implemented to enforce a certain environment that limits employees’ rights to enter into any negative discussion about their jobs or work environment, even if it’s a constructive discussion.
Mross says there are “dozens” of cases filed by workers claiming their rights have been infringed upon. She says many of these cases focus on “speech limitations in social media policies.
“The NLRB is finding fault with policies that broadly ban negative comments,” Mross adds. “The problem is ’employer overreaching’ since some comments that an employer may deem negative are also protected by the NLRA’s Section 7, where the subject of a live or electronic conversation involves two or more co-workers and the subject of the conversation includes terms and conditions of employment.”
So how does a company avoid NLRA claims? Mross suggestions include “narrowly draft and enforce your policies to address certain kinds of negative speech.” She uses the example of racist/sexist slurs, revealing trade secrets or other proprietary company info, and anything that violates a nondisclosure law. Also, anything that threatens physical harm to another person can be prohibited. “For an added defense, should your policy be called into question, add a statement that the policy does not ban comments relating to one’s terms and conditions of employment when made to co-workers,” says Mross.
Probably the best approach is to determine the root cause of the comments and address them, she adds. Open-door policies, anonymous contributions, and other changes in the work environment can engage workers in a more active airing of grievances. “It may make more sense to bring the problems into the light instead of punishing those who do,” she says.
Does your company have rules in place that attempt to remove negative speech or behavior from the work place?
Why were the rules put into place?
Have they worked?