In a recent opinion, the National Labor Relations Board (the Board) found an employer violated Section 7 of the National Labor Relations Act (Section 7) because it issued a policy designed to curb workplace negativity and gossip. Consistent with past opinions, the Board held the policies were invalid on their face because employees could reasonably construe the provisions to prohibit employees from engaging in “concerted activities.” In plain speech, the Board was concerned that the policies would chill employee discussions of unionizing.
So what did these chilling policies say?
•Employees will not make “negative comments about our fellow team members.”
•Employees will “represent the [company] in the community in a positive and professional manner in every opportunity.”
•Employees “will not engage in negativity or gossip.”
According to the Board, these prohibitions on “negative comments” and “negativity” are unlawful because complaining about terms and conditions of employment employees is protected under Section 7. Query whether the right to bemoan one’s job is a God-given right, the Board certainly believes employees have a statutory right to poor-mouth each other and the company.
The labor law provisions of this opinion are clear and predictable. Labor lawyers have seen this trend in Board decisions developing since at least 2012. What are the implications from a data privacy and security perspective? Think social media, SMS texting, chat rooms and the like.
There are serious risks associated with policies that limit employees’ ability to voice concerns about the workplace, even, or perhaps especially, in cyberspace. Companies should think twice before prohibiting employees from talking about the conditions of their work on Facebook or Twitter.
This is an especially vexing problem for investment banks and other regulated Wall Street players because the SEC and CFTC duties to monitor and supervise employee activity, at the very least, stands in tension with the Board’s expansive view of employee free-speech rights. Accordingly, companies considering policies that limit employee speech should only publish such policies to their employees after consulting with counsel.
To read the entire opinion, click here.