Gossip. We all know it exists in workplaces and that it can have a detrimental effect on employee morale and productivity. But before you rush to draft a “no gossip” policy, be sure to consider whether the language in your policy is overly broad. Otherwise, it could be found illegal and in violation of the National Labor Relations Act, which applies to all employers, even those without unionized workplaces.
A recent decision illustrates the risk an employer faces with an overly broad “no gossip” policy. Laurus Technical Institute is a private, for-profit technical school in the greater Atlanta, Georgia area. Joslyn Henderson was an admission representative for one of its campuses. On November 12, 2012 Laurus fired Ms. Henderson for, among other reasons, violating the company’s no gossip policy. She in turn filed a charge with the National Labor Relations Board (NLRB). The administrative law judge found that Laurus’ no gossip policy was overly broad and illegal under the National Labor Relations Act (NLRA). The judge ordered Laurus to cease and desist from enforcing its policy, to pay Ms. Henderson damages for lost earnings and other benefits, and to provide various notices to its employees.
What was so objectionable about Laurus’ no gossip policy? On its face, it may seem reasonable to most employers. The policy read, in part, as follows:
“Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral [sic], and overall satisfaction. It has the potential to destroy an individual and is counterproductive to an organization. Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility.”
The policy, which was incorporated into the company’s personnel handbooks, defined gossip as:
• talking about a person’s personal life when they are not present;
• talking about a person’s professional life without his/her supervisor present;
• making negative, or untrue, or disparaging comments or criticism of another person;
• creating, sharing, or repeating information that can injure a person’s reputation;
• creating, sharing, or repeating a rumor about another person; and
• creating, sharing, or repeating a rumor that is overheard or hearsay.
Violations of the policy called for a written warning, with further disciplinary action, including termination if further incidents occurred.
According to the judge, the problem with Laurus’ policy was it was vague and overly broad: it even prohibited discussions protected by the law. As a general matter, federal law gives all employees the right to talk freely among themselves to improve their working conditions, which may include creating a union or other collective action. These rights, known in this area of the law as “Section 7” rights because they are protected by Section 7 of the NLRA, give employees protection to discuss matters affecting their employment amongst themselves.Therefore, under the NLRA, if two or more employees act together to improve their terms and conditions of employment then they are engaging in protected concerted activity.
Here, the no gossip policy could deter employees from exercising their Section 7 rights. The broad language of the policy could discourage employees from discussing matters affecting the terms and conditions of employment amongst themselves. For example, the no gossip policy prohibits employeesfrom talking about their supervisorsif their supervisors were not there. That could mean that the employee is not able to discuss the terms and conditions of employment or changes he or she wanted from management.
According to the judge, “[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.” The judge concluded that this language would chill employees from having open conversations about their workplace, which is a violation of the NLRA.
So does that mean an employer can never have a policy prohibiting gossip in the workplace? Not exactly. The judge inLaurus recognized that workplace rules do not violate Section 7 when they are clarified by including examples of “clearly illegal or unprotected conduct.” But this case is a good reminder that employers must draft their policies narrowly and keep employees’ Section 7 rights in mind when prohibiting certain types of speech. Otherwise, the newest topic of gossip could be thelegal problems with your workplace policies.
Laura Salerno Owens Laura is an attorney with the Employment, Labor and Benefits Law firm of Barran Liebman LLP. Her practice focuses on employment litigation and advice. Contact her at lsalerno@barran.com or 503-276-2111.
