Monitoring workplace behavior to maximize productivity is not always easy. Everyone has their own opinions and personalities. And, unfortunately, some personalities may clash causing unnecessary drama and rumors that infect the workplace. This leads many employers to establish anti-gossip policies addressing some of these issues. At the outset this sounds like a good idea, but employers should proceed with caution.
The National Labor Relations Act (the “Act”) prohibits employers from stifling employees’ rights to discuss their wages, terms, and conditions of employment or otherwise engage in concerted activities. Overly broad policies prohibiting speech constituting “gossip,” without a definition of the term, may run afoul of this protection. The National Labor Relations Board, which is tasked with enforcing the Act, has approved anti-gossip policies that “specifically prohibit[] gossip, which is commonly defined and reasonably understood as chatty talk or rumors or reports of an intimate nature,” in contrast to policies prohibiting or frowning on “employee conversations generally, which would implicitly include protected concerted activity.” Lytton Rancheria of California d/ba Casino San Pablo and Unite Here Local 2850, 361 NLRB No. 148 (2014).
However, the policy itself is not the only concern. The conduct influencing the development of the policy could lead to a finding that the policy is unlawful. For example, the roll out of an anti-gossip policy immediately following a complaint about employees’ wage discussions igniting workplace issues or decreasing productivity may result in a finding that the policy is unlawful. See Securitas Security Servs. USA and Ryan Patrick Murphy, an individual, Cases 16-CA-176006, JD-78-17, 2017 WL 4334530 (N.L.R.B. Div. of Judges Sept. 28, 2017) (“I find that in this context, this [anti-gossip] rule was issued in response to employees’ protected activity, and that it would easily lead employees to understand it to restrict their [NLRA] Section 7 rights to discuss the terms and conditions of their employment with each other.”).
This information is general in nature and should not be construed as tax or legal advice.
