Ever wish you could tell employees to stop being so negative all the time? A Michigan employer learned the hard way that this type of ban can get you in hot water with the National Labor Relations Board (NLRB or the Board). The Board found unlawful a policy that employees could not “make negative comments about [ ]fellow team members” nor “engage in or listen to negativity or gossip.” Hills and Dales General Hospital (N.L.R.B. Apr. 1, 2014). In a nutshell, the Board held that “negativity” cannot be banned in a workplace policy because it chills employees’ ability to engage in protected, concerted activity.
Under the National Labor Relations Act (NLRA) employees are permitted to act together to discuss the terms and conditions of employment – which necessarily means that the can act together to speak negatively about their jobs. The NLRB is cracking down on employer policies and handbooks, and it has a habit of reading into policies violations that the employer never intended. Remember that the NLRA applies to almost all employees (even those who are not in a union). To avoid union activity and potential penalties under the NLRA (including reinstatement and back pay to terminated employees!) it is incredibly important to review policies to ensure compliance with the ever-changing employment and labor landscape.
