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Are Your Workplace Policies Too Upbeat for the NLRB?

Many employers know that keeping an upbeat and positive workforce is crucial to any successful business; however, recent NLRB rulings penalize certain policies that encourage such an environment, including policies that encourage or promote workplace civility.

NLRB employee handbookThe National Labor Relations Board’s (“NLRB”) rulings regarding employers’ social media polices are addressed in this blog (see herehere, and here). The NLRB’s focus, however, is not limited to social media policies, nor to unionized companies. Now, the NLRB is taking an interest in reviewing nonunion companies’ employee handbooks. Employers have found it increasingly difficult to set even the most basic standard employee and workplace policies in light of the NLRB’s rulings and memos that are critical of such policies.

Under Section 7 of the National Labor Relations Act (“NLRA”), employees have the right to self-organization; specifically, to form, join or assist labor organizations, and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, any business rules or policies that may reasonably tend to chill employees’ exercise of their Section 7 right are unlawful under the NLRA.

In a recent case, Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014), the NLRB found that workplace polices banning “negativity” and “negative comments” are illegal. The case involved Hills and Dales General Hospital in Michigan, which had an employee policy titled, “Values and Standards of Behavior.” The provisions at issue stated:

  • “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 Hills & Dales 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 it is the same as participating.”

All hospital employees signed a copy of the policy, which was then included in their personnel file. After an employee violation arose, the policy came under attack.

The NLRB found all three provisions to be unlawful because employees could reasonably believe the polices “proscribe them from engaging in any public activity or making any public statements that are not perceived as ‘positive’” towards the hospital. The policies–by the NLRB’s reasoning– could prevent employees from making statements about their terms and conditions of employment, which is protected speech by the NLRA. As a result, the hospital was ordered to retract these sections of the Values Policy and delete them from all sources.

Employers must carefully review employee conduct policies in the face of continued NLRB scrutiny. Policies should be narrowly tailored to avoid restricting protected Section 7 activity and language that might be considered too broad or ambiguous should be avoided.

© 2020 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.


About this Author

Brittany Blackburn Koch, McBrayer Law Firm, Litigation Family Attorney

Brittany Blackburn Koch is a member of the firm's litigation group. Her practice is diverse, with a primary focus on civil litigation and family law. Her civil litigation practice includes the areas of contract disputes, personal injury, and employment law, which consists of representing employers in state and federal trial courts for issues associated with the enforcement of no-compete agreements, the investigation and defense of discrimination claims, and the negotiation and enforcement of severance agreements.

Ms. Koch provides a variety of family law services ranging from the...