Suppose you have been struggling with low morale and lack of cooperation among your employees, low client satisfaction, and high employee turnover. Your company culture needs an instantaneous makeover, and you are not sure if even that is fast enough. What do you do? Using the policies of similar companies as your model, you set up employee teams to address some of the more troublesome issues. You decide that your first goal is to develop a Statement of Values and Standards. The employee team charged with this task comes up with a draft and then distributes it to all employees for review and comment. After two more rounds of drafts, the team finalizes its Statement of Values and Standards, which covers a variety of concerns, such as respect, teamwork, client satisfaction, continuous improvement, and even fun (apparently even that needed a policy). This statement includes prohibitions against employees making negative comments against and gossiping about each other, and an agreement to represent your company in a positive and professional manner. You circulate this statement and ask all your employees to sign it, indicating their agreement to abide by it. Over time, you notice a significant improvement. Sounds like you’re off to a great start! What could go wrong? Unfortunately, this seemingly harmless policy could land you in hot water with the National Labor Relations Board (NLRB) Join The Emplawyerologist after the jump and find out why…
Add some more facts to the example we are discussing this week, and we essentially have what happened in Hills and Dales Hospital and Danielle Corliss Case No. 7–CA–53556, decided by the NLRB about two weeks ago. What other facts? An employee is terminated for allegedly throwing a yogurt cup at another employee. The terminated employee makes negative comments on Facebook about her termination and hospital personnel. Another employee, makes the following comment on Facebook:
Holy shit rock on [S!]. Way to talk about the douchebags you used to work with. I
That employee is disciplined, based on violations of paragraphs 11, 16 and 21 of the Statement of Values and Standards, which read as follows:
11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.
16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.
21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.
Again, what’s the problem? An employer can terminate an employee for inappropriate behavior. Nonetheless, this set of facts became the subject of a complaint before the NLRB–even though the hospital’s workforce was not unionized. Why? To answer that we need a mini, crash course on two sections of the NLRA.
Many employers are unaware that even if your workers are not unionized, the NLRB may still have something to say about certain of your employment practices. Section 7 of the National Labor Relations Act of 1935 affords employees the right to
“self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]”
Since President Obama took office, the NLRB has read this section more expansively than in previous years, holding that seemingly negative comments or discussions about pay or work conditions is protected, concerted activity within the meaning of Section 7. This statute does not restrict itself to unionized workforces. Non-unionized workers may organize a union (click here to read about that in last week’s post) or simply talk about work and help each other with workplace problems. A policy such as the one in this case, or a disciplinary action based on such a policy, may, according to the current NLRB, may be an interference with these rights, which, under Section 8(a)(1) of the NLRA is an “unfair labor practice”.
How does the policy in this case violate the NLRA? The NLRB said that the paragraphs in question are so overbroad that the reasonable employee could read it and believe that the prohibitions include discussing work conditions with each other, or other activities specifically allowed under Section 7. T (This is a recurring theme in many of the NLRB’s rulings in the last few years, which I will be covering in upcoming posts). In this case though, the Board went so far as to say that the rules were so plainly overbroad and ambiguous that extrinsic evidence linking the restrictions with any particular protected concerted activity was not necessary. In fact, the complaint in this case, takes no issue with the disciplinary action against the employee, who made the Facebook comment. The NLRB only took issue with the paragraphs quoted above, and essentially ordered the hospital to either revise or rescind those excerpts.
Hills and Dales Hospital is not the only employer with this type of policy, and its goals of boosting morale and improving the work environment are certainly admirable. In fact, Hills and Dales Hospital noted that its policies and practices were working. Where does this ruling leave employers? While the NLRB has not given much guidance as to what types of policies or what wording is acceptable, here are some suggestions:
- Instead of simply prohibiting “negativity”, provide specific examples of the type of behavior you wish to prohibit.
- Do not prohibit discussions of working conditions or wages among employees.
- Consider using phrases that require employees to “represent the company in a positive and ethical manner.”, as this language is NLRB-approved.
- Consider including a clause that specifically states that none of the policies are intended to prohibit activity protected under Section 7 of the NLRA.
- Review your policies with competent labor and employment counsel.
- Keep your eyes and ears open — Hills and Dales Hospital has said it will be appealing this ruling!
Come back next week for more discussion on common workplace practices and the NLRB. Meantime, here is and example of what not to do:
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
“Like” The Emplawyerologist on Facebook, by clicking here.
Want to really be up to date on hot button topics impacting employers? E-mail email@example.com for a bi-weekly subscription to Emplawyerology Alerts!