October 18, 2019

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National Labor Relations Board (NLRB) Interferes with Employer's Freedom to Moderate the Workplace

The National Labor Relations Board ("NLRB") recently issued a decision finding that an employer's conduct rules violated the National Relations Labor Act ("the Act") by interfering with employees' ability to discuss their terms and conditions of work. In Hills and Dales General Hospital, the NLRB reviewed the employer's Values and Standards of Behavior Policy, which prohibited employees from making "negative comments about our fellow team members" and "engag[ing] in or listen[ing] to negativity or gossip." The policy also required employees to represent the hospital "in the community in a positive and professional manner in every opportunity."

The NLRB stated that any work rule—whether in a union or non-union environment—violates the Act by restricting Section 7 activity if: (1) employees would reasonably construe the language to prohibit the ability to discuss the terms and conditions of employment; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights to discuss or concertedly act with respect to the terms and conditions of employment.

All three portions of the policy were found to be overbroad and ambiguous. The NLRB decided that employees could "reasonably view" the policy language as restricting them from engaging in any public activity or making any public statements that might not be positively portraying the hospital. This then could discourage employees from engaging in protected public protests of unfair labor practices, or making statements to third parties protesting their terms and conditions of employment. As a result, the NLRB required the hospital to rescind these portions of the policy.

The NLRB's decision appears to be rather over-reaching and likely to be appealed. In the meantime, employers should review their standards of conduct. Although it may not be necessary to rescind similar policies, employers could consider qualifying existing policies so that employees will understand that they are not prohibited from discussing the terms and conditions of their employment.

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About this Author

Geoffrey Trotier, Von Briesen Roper Law Firm, Milwaukee, Labor and Employment, Healthcare Law Attorney

Geoff Trotier is a Shareholder in the Labor and Employment Law Section. Geoff proactively assists businesses of all sizes and complexities as well as municipalities and school districts in many diverse labor and employment issues, including:

  • Drafting, enforcing and litigating non-compete agreements;

  • Avoiding and defending discrimination claims;

  • Advising on reasonable accommodation and return-to-work issues;

  • Advising clients on...

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