A few months after creating a stir by holding that certain employer social media policies violated the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has struck again by finding that the NLRA protects an employee’s right to gossip in the workplace provided the gossip pertains to the working environment. The holding in Laurus Technical Institute v. Henderson, Case No. 10-CA-093934 (December 11, 2013) is yet another example of the NLRB operating in new areas and follows the trend it started when it dove headfirst into the world of social media policies 2012-13.
Workplace gossip has inhibited employee productivity for as long as the water cooler has existed. In an attempt to limit the damage done by gossip, employers have implemented policies restricting or prohibiting employees from engaging in office rumors and gossip. Laurus Technical Institute did exactly that when it passed its No Gossip Policy. The policy prohibited “gossip” about the company, an employee or a customer. The policy went so far as to define gossip as including:
- Talking about a person’s personal life when they are not present;
- Talking about a person’s professional life without his/her supervisor present;
- Negative, or untrue, or disparaging comments or criticisms of another person or persons;
- Creating, sharing or repeating information that can injure a person’s credibility or reputation;
- Creating, sharing, or repeating a rumor about another person;
- Creating, sharing or repeating a rumor that is over hear or hearsay.
Laurus terminated Henderson for a variety of reasons including for violating the No Gossip Policy. As it did when it struck down social media policies, the NLRB relied upon Section 7 of the NLRA in finding the No Gossip Policy invalid. Section 7 states that “[e]mployees shall have the right to …engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”
In the Laurus decision, the NLRB found that the No Gossip Policy was “overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and condition of employment.” The NLRB went on to state that “[s]uch an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity….”
The employer tried to argue that even if Henderson was engaging in protected activity as defined by the NLRA that her behavior was so disruptive that she waived the protections of the Act. The NLRB summarily dismissed this defense on the grounds that Henderson was merely discussing terms and conditions of work and thus was protected and not disruptive. Laurus was ordered to reinstate Henderson, pay all back wages and strip her personnel file of references to the suspension/termination.
The Laurus decision further demonstrates the NRLB’s seemingly increasing reach into places of employment well beyond the traditional union setting. It is a reminder to all employers to be careful about regulating employee conduct when it concerns terms or conditions of the workplace. It is still possible to have a valid no gossip policy but it must be narrowly tailored.