Over the last few years, the National Labor Relations Board has continuously expanded Section 7's reach, a section which generally protects speech about working conditions, such as pay and hours. First, the NLRB stretched Section 7 to cover overly-broad social media policies, which often contain anti-disparagement language. And while "no badmouthing the boss or company on Twitter" may seem reasonable, the NLRB held that the broad language could discourage protected Section 7 speech.
In January, the NLRB struck again, but this time at a different topic: workplace gossip. Free speech may have no place in the workplace, but speech about working conditions does, and policies that broadly prohibit backbiting and gossip will be struck down on that accord. The trend continued this month, with the NLRB striking down an employee-authored policy, the Values and Standards of Behavior Policy at Hills and Dales General Hospital.
Problem: Employee Morale
As was the case with Lazarus Technical Institute's policy, the one struck down in January, this policy was prompted by employee morale issues, including widespread gossip, backbiting, and negativity. Here, the hospital administration didn't draft the policy -- employees did, at the hospital's request. Nonetheless, no matter the source of the policy, if it's overbroad, it will be struck down.
Solution: Ban Negativity
The "Values and Standards of Behavior Policy" contained three provisions that caught the NLRB's eye:
- A prohibition on "negative comments about our fellow team members" (including managers);
- A provision requiring employees to represent the hospital in a "positive and professional manner" in the community;
- A prohibition on engaging in or listening to "negativity or gossip";
It's the classic non-disparagement, "if you don't have something nice to say" policy, one that is almost guaranteed to fail under the NLRB's recent interpretations of Section 7.
New Problem: Section 7
Though the hospital had not applied the rules to protected Section 7 speech, the question addressed by the Board was whether the language could be reasonably construed to restrict protected speech or conduct.
Can't talk negatively about managers? There goes complaining about workplace conditions. Ditto for prohibiting "negativity or gossip." And the "positive and professional" representation clause, according to the NLRB opinion, would get in the way of protecting labor conditions.
The new rule of Section 7 is that if any policy, social media, conduct, or otherwise, could possibly be interpreted as restricting protected speech, it will fall. Employers need to review all policies and handbooks, and revise accordingly. An exception to each policy for "speech about working conditions, such as pay and hours," might suffice.
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- Hills and Dales General Hospital - NLRB Opinion (Scribd)
- NLRB Gives Up Fight Against Notice Posting Rule Cases (FindLaw's In House Blog)
- Kan. Regents' Social Media Policy Flawed, but Not for Free Speech (FindLaw's In House Blog)