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Why the NLRB hates your no gossiping policy

By Paul Edwards bio

I keep running into this problem as we evaluate pre-existing employee handbooks across the country. The issue is that, as an employer, you want to address employees standing around and gossiping. Or standing around and not being productive, or standing around and distracting those who are being productive. In fact, you don’t want employees standing, or sitting, around at all.

So you get creative, and a new policy is born. Here are examples we run into all the time:

  • No gossiping!
  • Employees may not stand around or be inactive for more than 10 seconds.
  • Employees may not conduct personal business during working hours.
  • Employees must not intentionally create problems for other team members, managers, or others. Doing so may result in warnings and/or termination.
  • Employees must not act in a discourteous or insubordinate manner.
  • Employees may not make disparaging comments or criticisms about other employees or managers.
  • Employees may not divulge confidential information relating to the practice.
  • And…oh, endless variations of the above.

So, what exactly is wrong with these policies? Unfortunately, every one of them is not fully enforceable at best and downright illegal at worst. And the NLRB aggressively goes after small businesses as well as large ones when policies like these are brought to their attention.

Here’s why: The National Labor Relations Act says employers cannot create a policy or enforce rules, written or not, which would even remotely imply that employees may not gather or discuss their wages, benefits and working conditions. This applies whether employees are on or off the clock.

And the National Labor Relations Board (NLRB), which enforces the NLRA, has been shooting down policy after policy as overly broad and unenforceable, because they may infringe upon workers’ protected rights.

So policies like “No employee may stand around for more than 10 seconds” have been identified by the NLRB as illegal. According to the Board, what this implies is that employees may not for any reason spend time “standing around” in discussion—even if they are discussing benefits, wages, and working conditions.

This and the other overbroad policies above may also be seen as attempting to govern employees’ time while on break, which is a huge no-no. The Board has been very specific about the fact that it is not legal to have policies of this sort, even if you do not enforce them.

Other policies the NLRB watches out for are those which improperly tell employees that they may not make disparaging remarks about the practice. Again, this is because employees’ rights to discuss working conditions are protected, and employers may not regulate how or when employees may exercise those rights.

Here’s how this applies to you

I know the temptation for employers is to roll our eyes when we see these things and think, what are the chances I’m going to have a problem with this? But the NLRB has been vigorously pursuing employers of all sizes, and it’s easy to accidentally get their attention during a simple upset.

Here’s how it happens

  1. A typical issue arises where, for example, an employee is fired for “being disruptive, and for unprofessional communication.” Happens from time to time at every practice, right? And the firing itself may be justified. But if the employee in question is upset or thinks she can get you in trouble, she may take her case to an attorney.
  2. The attorney then finds some form of one of the policies we’ve discussed. Victory! Whether the initial case was strong is no longer even an issue.
  3. It’s a simple fax from the attorney to the NLRB. They investigate. Here’s what the result is eventually likely to be: Front pay. Back pay. Reinstatement. Fines. Plus, legal fees, for the employer and the employee’s attorney.
  4. Turn your pockets inside out, pack a sandwich in a bandanna, and tie it to the end of a stick.

It’s ridiculous how quickly this can get out of hand. Just type “NLRB” and “gossip” into Google and you’ll see what I mean. (By the way, your employees may be on to this, too).

As you can see, this is an issue where the only cure is prevention: having an employment law expert review your policies before they cause you problems.

And, by the way, once you have legally compliant policies in place, there are better, safer ways to require and enforce good behavior among your employees.

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