Expert Guest Entry by Nathan Pangrace, Originally Published on http://ralawemployment.blogspot.com/
The National Labor Relations Board (NLRB) recently held that an employer’s policy prohibiting “negative comments” and requiring “positive and professional” behavior was unlawful. The employer, Hills and Dales General Hospital, developed the policy in response to a poor working environment that was permeated with “back-biting and back stabbing.” Employee satisfaction was low, employees were looking for jobs elsewhere, and patients were seeking health care outside the hospital. As a result, the hospital set up a team of employees to develop a statement of values and standards of employee behavior, which contained the following paragraphs:
11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other. 16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity. 21. 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.
The hospital asked employees to sign poster-sized copies of the policy. The hospital then framed the posters and placed them in the lobby where patients could see them. Following the policy’s implementation, the hospital experienced improvements in employee and patient satisfaction, as well as its ability to attract and retain personnel. However, on November 15, 2011, the NLRB General Counsel filed a complaint against the hospital alleging that the policy violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. Under Section 7, employees have the right to engage in concerted activities for their mutual aid or protection.
In an April 1, 2014 decision, the Board held that the prohibitions of “negative comments” and “negativity” and the requirement that employees “represent [the hospital] in the community in a positive and professional manner” were unlawful. According to the Board, the hospital’s policy was “overbroad and ambiguous,” and employees could reasonably view the policy as preventing them from engaging in any public activity or making any public statements that were not perceived as “positive” towards the hospital. This could discourage employees from protesting unfair labor practices or their terms and conditions of employment — activities that are protected by Section 7. The Board rejected the hospital’s argument that the policy was valid because employees were involved in drafting the rules.
This decision follows a recent pattern of the Board finding that common employer policies are overly broad and in violation of the NLRA. It is important for employers to periodically review their policies with assistance from legal counsel to avoid a charge of unfair labor practices.