Tag Archives: Section 7 NLRA

Workplace Gossip Policies Revisited

Three years ago, I wrote a post asking whether it was a good idea for employers to institute workplace anti-gossip policies.  As everyone knows, gossip in the workplace is ubiquitous and inevitable — and can be devastating to an organization and individuals if it goes beyond a certain point. I left the issue open, but such policies do raise a number of questions.

One, for example, is how to define and regulate “gossip.” One person’s gossip, after all, may be another person’s discussion of problematic personal interactions or work conditions (see below). Another question is how to monitor gossip: no wants to encourage a tattle tale, “Mommy, he was mean to me!” culture.  In addition, many believe that excessive gossip reflects other problems in the workplace such as inadequate communication or perceived inequities — and management’s job is to tackle those problems, not the negative effects.

Recently, moreover, things have occurred in the legal landscape that make this issue more complicated. The National Labor Relations Board has ruled that a range of employee communications, even by those who work in non-union workplaces, are legally protected under Section 7 of the National Labor Relations Act.  That section gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” when such activity addresses terms and conditions of employment.

Using this law, the NLRB has ruled that employees cannot be disciplined for engaging in protected activity, including for communications about work issues on social media. It also has invalidated employee handbook provisions that suggest that an employee could be disciplined for engaging in such activity. In one case, for example, the NLRB criticized an employer’s handbook statement that employees needed to be “courteous, polite and friendly” and could not be “disrespectful” or use language that injured the image or reputation of the company.

It is beyond the scope of this blog to discuss the legal parameters of this emerging area of the law.  Suffice it to say that if several employees are talking about how cheap the boss is because they haven’t gotten raises in two years, that is likely going to be protected concerted activity regarding wages and they cannot be disciplined for this conversation.  On the other hand, if several employees are discussing what a “tramp” a co-worker is, that is likely not protected as it does not pertain to working conditions. 

So where does this leave employers who are thinking of implementing anti-gossip policies?  Proceed with caution. And when in doubt, consult a lawyer. It remains important, however, to address gossip that may rise to the level of harassment or discrimination, and more generally to address morale issues that may result from excessive gossip or badmouthing.

What are your thoughts?  ~Amy Stephson

Social Media Part 2: Trashing the Boss

In my previous post, I discussed employer social media policies. Left unanswered was the question: What if an employee trashes the company or their boss? Like many other employment issues, this one is complicated.

The source of the complication is Section 7 of the National Labor Relations Act (29 U.S.C. Sec. 157), which protects any employee who “engage[s] in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This applies to all employees, not just union employees. Among other things it means that employees are entitled to discuss with each other the terms and conditions of their employment.

In the social media context, this means that employees may express concerns online about their employers if it can be deemed concerted activity regarding work conditions. So if two or three employees go online and start a discussion of how low their wages are and what they can do to increase them, this is protected, even if they say some unkind things about the boss along the way.

Mere rants by one employee, however, may be punishable. For example, in one case a bartender was fired for griping to his stepsister on Facebook about his pay and insulting his customers. Among other things he called the bar’s customers “rednecks” and said he hoped they choked on glass as they drove home drunk.

This a developing area of the law for employers and there is a lot of online commentary about it. For a comprehensive overview of what’s happening, check out a hot-off-the-press report by the U.S. Chamber of Commerce.

Have you had any experiences with employee use of social media?  ~Amy Stephson