Question:

My family has owned our business for over 50 years. In the beginning, only family members worked here. Now we have employees who have no relation to the family. I am concerned about these newer employees’ loyalty to our business. I hear them gossiping about management. Should I add a policy against gossip to our employee handbook?

Answer:

Handbook policies are important for communicating work rules to employees. Employers can have policies that prohibit employees from discussing private, proprietary information belonging to the business. Policies can generally prohibit harassing, rude, defamatory, profane and disruptive conversations. In addition, employees can be disciplined for wasting time gossiping when they should be working.

However, employers need to be cautious when writing policies on gossip and other discussions between employees. This is because the National Labor Relations Act (NLRA) protects “concerted activity,” which occurs when two or more employees discuss their wages, hours, or working conditions, in both union and non-union workplaces.

Policies that could be interpreted as prohibiting lawful discussions may violate the NLRA. Here are examples of policies that the National Labor Relations Board (NLRB) has recently decided are not permitted because they are overbroad:

  • A policy against discussing salary information with co-workers,
  • A guideline against discussing company and employee issues in public areas,
  • A broad policy against negative conversations about employees or managers, and
  • A blanket rule against electronic posts criticizing the employer.

In September 2012, in the case of Knauz BMW, the NLRB found the following policy violated the NLRA:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB concluded that the first two sentences of this policy were permissible, but that the last sentence was overbroad because discussions about wages, hours, and working conditions could be seen as disrespectful or could hurt the employer’s image. The NLRB ordered the employer to remove the courtesy policy from its handbook.

The NLRA’s protection extends to social media. The salesman who brought the Knauz BMW case alleged he was discharged due to two Facebook posts. In one post, he made sarcastic comments about the BMW dealer serving hot dogs, chips, and bottled water at a sales event. The NLRB noted that this post could be protected under the NLRA because serving low-cost food may have affected commissions. However, the salesman was not fired because of this post. Instead, the employee was fired for a second post of a photo of a customer’s 13-year-old son driving a test car into a pond. Because the second post did not involve any comments related to wages, hours, or working conditions, the post was not protected speech and the dealership could fire the salesman.

Keep in mind that if a workplace policy is ambiguous about whether it covers employees’ discussions of terms and conditions of employment, it may be unlawfully overbroad. In order to avoid ambiguity, you could add this disclaimer to your handbook:  “This policy does not apply to discussions and activities involving your wages, hours, and working conditions.”

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