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Labor & Employment Law Alert - Not April Foolin’: National Labor Relations Board Finds Employer Rule Requiring Positivity and Professionalism Unlawful

April 4, 2014   |   Atlanta | Chicago | Columbus | Delaware | Elkhart | Fort Wayne | Grand Rapids | Indianapolis | Los Angeles | Minneapolis | South Bend

On April 1, the National Labor Relations Board (NLRB) ruled unlawful an employer policy requiring that employees refrain from negativity in the workplace and in the community. In Hills and Dales General Hospital, Case No. 07-CA-053556, the NLRB continued its recent trend of finding that common employer policies, including policies limiting or requiring civility in social media use, those describing the at-will relationship between an employer and its employees, and certain confidentiality provisions, are overbroad.

At issue in Hills and Dales were the following three paragraphs in the employer’s Values and Standards of Behavior Policy: 1.) Paragraph 11 prohibited employees from making “negative comments about our fellow team members,” including coworkers and managers; 2.) Paragraph 16 required employees to represent the employer “in the community in a positive and professional manner in every opportunity;” and 3.) Paragraph 21 prohibited employees from engaging or listening to “negativity or gossip.”

While the NLRB agreed with the administrative law judge that the prohibition on negativity found in paragraphs 11 and 21 was unlawful because employees could construe the prohibition as forbidding lawful activity, it overturned the administrative law judge and found paragraph 16 unlawful also.

In finding paragraph 16 overbroad and ambiguous, the NLRB stated “particularly when considered in context with these other unlawful paragraphs, employees would reasonably view that language . . . as proscribing them from engaging in any public activity or making any public statements . . . that are not perceived as positive toward the [employer] on work-related matters.” According to the NLRB, this language could discourage employees from engaging in protected activity, such as protests of unfair labor practices or complaints to third parties regarding working conditions. Contrary to the administrative law judge, the NLRB did not find previous precedent involving extremely similar language persuasive.

While the NLRB previously found lawful a policy requiring employees “to represent the company in a positive and ethical manner,” the current NLRB distinguished ethical manner from professional manner, as used in the Hills and Dales policy. Specifically, the NLRB stated that combining positive with ethical was significantly narrower in scope than combining positive with professional, and that professional is a “broad and flexible concept as applied to employee behavior.” Thus, despite the similarity to the previously permitted policy, the Hills and Dales language was unlawful as overbroad and ambiguous.

While the Hills and Dales decision will likely surprise some employers with its prohibition on seemingly rational and well-meaning policies, it serves as a strong reminder that the current NLRB remains interested in policing employer rules for potentially overbroad or ambiguous language.

To steer clear of these negative outcomes, it is important for employers to work closely with counsel to draft and periodically review their employment policies.

For more information, please contact the Barnes & Thornburg Labor and Employment attorney with whom you work, or a leader of the firm’s Labor and Employment Department in the following offices:

Kenneth J. Yerkes
Department Chair
(317) 231-7513

John T.L. Koenig
Atlanta
(404) 264-4018

David B. Ritter
Chicago
(312) 214-4862

William A. Nolan
Columbus
(614) 628-1401

Eric H.J. Stahlhut
Elkhart
(574) 296-2524

Mark S. Kittaka
Fort Wayne
(260) 425-4616

Robert W. Sikkel 
Grand Rapids
(616) 742-3978

Peter A. Morse
Indianapolis
(317) 231-7794

Scott J. Witlin
Los Angeles
(310) 284-3777

Teresa L. Jakubowski
Washington, D.C.
(202) 371-6366

Janilyn Brouwer Daub
South Bend
(574) 237-1139

©2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is proprietary and the property of Barnes & Thornburg LLP. It may not be reproduced, in any form, without the express written consent of Barnes & Thornburg LLP.

This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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