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Can Workplace Civility Policies Be Illegal?

In today’s litigious society it is essential that all companies, whether big or small, have an employee handbook which sets forth clear employment policies. Most employee handbooks contain so called “workplace civility” policies. These sections typically set forth rules and procedures aimed at preventing employee gossip, inflammatory language, insults, or any other language which may create a negative work environment. However, companies need to be very cautious as to how they word these policies. Policies pertaining to employee speech, which are over broad, or overly restrictive have recently been found to be in violation of federal labor laws.

The National Labor Relations Board, or NLRB, enforces the National Labor Relations Act (NLRA) which is the federal labor law that applies to the vast majority of private sector employees (whether unionized or not). Section 7 of the NLRA makes it unlawful to take adverse action against employees engaging in “protected concerted activities.” Concerted activities include communications between employees, though not all employee communications are protected.   Communications are protected only where they pertain to wages, hours, and working conditions. Recently the NLRB has been defining “working conditions” very broadly, expanding the scope of Section 7 protection. The Board has indicated that communications regarding “working conditions” include complaints about supervisors, work environment, and employee conflicts. There are some limits to these protections; “mere griping” is not protected where the comments do not demonstrate “any intention on behalf of the employee to organize or seek redress.”

However, even if the Board upholds disciplinary action against an employee, for instance, for spreading harmful rumors about a supervisor, the Board may still find a company’s workplace civility clause unlawful. In recent cases the Board has invalidated sections of an employee handbook which have a chilling effect on employees engaging in protected concerted activities. Specifically, the Board has stated that if policies are overbroad and have the effect of prohibiting certain protected activities, those policies are unlawful.

For example, in one recent case the Board struck down the following handbook language: “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other. We will represent [the company] in the community in a positive and professional manner in every opportunity. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop is the same as participating.”

The Board found issue with the terms “negative comments” and “negativity or gossip.” The reason the Board found these terms objectionable was because they were overly broad and ambiguous. While they did not clearly forbid employees from engaging in protected concerted activities, employees could “reasonably construe them to prohibit protected Section 7 activity.” Therefore, the entire policy was invalidated.

Thus, such policies need to be specific and narrowly tailored.   According to Labor Attorney, William Brown, Esq. of Portnoy, Messinger, Pearl & Associates Inc., rather than forbidding negative comments, companies should include aspirational language such as “employees are encouraged to represent the company in a positive and ethical manner.” And finally all employee handbooks should include a disclaimer that nothing contained herein is designed to infringe upon employee’s rights under Section 7 of the NLRA.

All employers are encouraged to check their handbooks and revise their language accordingly. If your company handbook has not been updated in the last 18 months, it is likely that it does not address recent workplace laws that have been developed. To have your employee handbook reviewed, contact Portnoy, Messinger, Pearl & Associates. PMP’s team of attorneys and HR professionals have worked with hundreds of companies across the country drafting handbook language that is clear, effective, and compliant with State and Federal laws.


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