June 19, 2014

Psst … NLRB Finds "No Gossip" Rule Unlawful

Continuing its trend of scrutinizing employers' handbook policies, the National Labor Relations Board (NLRB) recently found that an employer's "no gossip" policy — prohibiting employees from instigating or participating in gossip about the company, coworkers or customers — was overbroad and violated federal labor law. Likewise, the NLRB found that firing an employee for violating that rule was unlawful.

Laurus Technical Institute, a for-profit technical institution in Georgia, maintained a "No Gossip Policy" that applied to its employees. The policy stated that gossip was "not tolerated," and that employees who engaged in gossip "will receive disciplinary action." "Gossip" was defined as:

  • "[T]alking about a person's personal life when they are not present."
  • "[T]alking about a person's professional life without his/her supervisor present."
  • "[C]reating, sharing, or repeating a rumor about another person."

This policy came to the NLRB's attention after a Laurus admissions representative violated it by discussing the discharge of three other employees with her co-workers. The admissions representative and her coworkers then contacted a former colleague who worked at another school to discuss the availability of jobs there. Laurus learned of this communication and discharged the admissions representative, citing her "willful breach of company policies" and "attempts to actively solicit and recruit coworkers to work for another company, a direct competitor."

An NLRB Administrative Law Judge (ALJ) found that the "No Gossip" rule was facially unlawful, as it prohibited employees from engaging in protected concerted activity under the National Labor Relations Act. The ALJ also found that discharging the admissions representative for violating this policy was unlawful. The NLRB upheld this decision on both fronts, adopting the conclusion that: "The language in the no gossip policy is overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment … 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."

In addition to enforcing the finding that the "No Gossip" rule was unlawful, the NLRB also enforced the ALJ's decision that Laurus violated federal labor law by terminating the admissions representative. The decision found that it was unlawful to terminate the employee for engaging in the protected concerted activity of discussing with other employees various work-related concerns such as paid time off requests.

In light of this decision and the NLRB's other recent decisions finding often-used employee handbook policies unlawful, we expect that many clients would benefit from a review of their employee handbooks. If you would like to discuss how this and the NLRB's other employee handbook decisions affect you, please contact the author or any member of the Faegre Baker Daniels labor management relations group.

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