Despite good intentions, sometimes policies designed to improve employee morale and customer service turn out to be unlawful under the National Labor Relations Act (the Act).
A recent decision by the National Labor Relations Board (NLRB) illustrates its continued focus on communications policies for both union and non-union workplaces.
In Hills and Dales General Hospital, the NLRB ruled that requiring employees to represent the company in a "positive and professional manner" and avoid negative comments violates Section 7 of the Act.
The hospital, a non-union employer, created a Values and Standards of Behavior Policy which prohibits “negativity or gossip,” including employees making negative comments about co-workers.
The policy also states that employees will "represent [their employer] in the community in a positive and professional manner." An employee charged that such language infringed on employees' rights under the Act to engage in protected activity for their "mutual aid or protection."
Initially, an Administrative Law Judge ruled that the provisions prohibiting "negative comments" and "negativity or gossip" were unlawful, but didn’t object to the language regarding the "positive and professional manner."
However, on appeal, while the NLRB agreed with the judge's ruling on the negativity-related provisions, it found the language requiring "positive and professional" conduct to be "overbroad and ambiguous" and unlawful. "In the community" could be seen as prohibiting any type of public activity, protest or public statement that might reflect negatively on the employer.
Although it may appear the NLRB took issue with the phrase "in the community," the problem arose over the "positive and professional manner" language. The NLRB noted that employers can require staff to "represent the company in a positive and ethical manner," but it is unlawful to require employees to act in a "positive and professional manner." The NLRB decided that combining "positive" with "ethical" has a much narrower scope than combining "positive" with "professional," which connotes a "broad and flexible concept as applied to employee behavior."
This case serves as a reminder to all employers to carefully review employee conduct policies in the face of continued NLRB scrutiny. Policies should be narrowly tailored to avoid restricting protected activity, with care taken to eliminate language the NLRB may consider too broad or ambiguous.