NLRB Strikes Down “Negativity” Policy

by Hirschfeld Kraemer LLP

Eighteen months ago, we reported on a slate of decisions from the National Labor Relations Board (NLRB) which struck down social media, confidentiality and other similar policies from non-union employee handbooks.  Last week we reported that, in a surprising turn, the Fifth Circuit Court of Appeals recently enforced one of those decisions in Flex Frac Logistics LLC v. NLRB.  This employer had a written confidentiality policy that prohibited the disclosure of “confidential information,” which applied to not only sensitive business information like business plans, pricing and cost schedules and other intellectual property, but also to “personnel information and documents.”  The NLRB decided—and the 5th Circuit affirmed—that the policy was overbroad because it could be read to prohibit employees from discussing their wages.

We surmised that the effect of this decision was limited because it contradicted existing precedent, but we also cautioned that employers should avoid the same or similar wording in their own policies—since the NLRB and 5th Circuit’s logic was based upon the potentially broad scope of the phrase “personnel information and documents.”

The NLRB  has now provided us with another cautionary tale, Hills and Dales General Hospital and Danielle Corliss.  In that case, the employer hospital was suffering from a documented dive in employee morale due to internal employee conflicts, and its patient-customers were losing faith.  Employee departures were high and patients were seeking healthcare elsewhere.  In response, the hospital instituted a set of conduct rules that included, among  other things, these three provisions:

  • employees will not make “negative comments about [] fellow team members” (and “team members” included coworkers and managers);
  • employees “will not engage in or listen to negativity or gossip”; and
  • employees will  “represent [the employer] in the community in a positive and professional manner in every opportunity.”

That the NLRB found the first two provisions unlawful is not surprising.  In the context of social media and elsewhere, the Board has found that broad prohibitions against negativity violate the NLRA because they could be reasonably construed by employees as prohibiting protected activities such as discussions of wages and working conditions.  (As an aside, there is some indication that if the second provision was limited to “gossip” and did not include the much broader “negativity,” then this provision might have been found legal.)  On the other hand, that the NLRB struck down the third provision, requiring the employees to represent the employer “in the community in a positive and professional matter” is surprising.  Other NLRB decisions have approved of “business decorum” language, which requires a positive attitude in the course of business, i.e., in the course of executing one’s work duties on behalf of the employer.

So does this mean that employers must remove all language from their handbooks requiring such “business decorum”?  Not likely.  The NLRB’s decision here seems to focus upon a few key factors.  One, the “business decorum” language was sandwiched between two other provisions prohibiting “negativity” that the Board found unlawful—and the Board cited this juxtaposition in finding the “business decorum” provision unlawful.  Two, the use of the phrase “in the community” led the NLRB to conclude that the rule could be reasonably construed as applying to non-work settings.  Three, the NLRB found a difference between “positive and professional” behavior (found unlawful here) and “positive and ethical” behavior (language held by the NLRB to be lawful in another decision).  (The NLRB also mentioned that the offending language here was included under the heading of a “Values and Standards of Behavior” policy, whereas the prior-approved “positive and ethical behavior” language appeared in a “Conflict of Interest” section; however, this seems to be a very thin distinction and reason for invalidating such language.)

In sum, this seems to be a decision that does not require a wholesale redrafting of employer policies, but it does warrant a review of such policies to make sure that the aforementioned language deemed to be overbroad and overreaching is absent.  Additionally, of course, employers should ensure that broad prohibitions on “negativity” and the like are sufficiently narrowed so that they pass NLRB muster.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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