Freedom of Watercooler Speech? NLRB Invalidates Employer’s No-Gossip Policy

2 minute read | December.31.2013

Do mean-spirited watercooler talk, negative gossip, and backbiting have an effect on employee morale that companies would like prevent if they could? In many instances, probably yes. Why don’t employers create “no gossip” policies aimed at improving morale in the workplace? One company did implement such a policy and it didn’t work out so well.

In Alurus Technical Institute & Joslyn Henderson, an administrative law judge of the NLRB held that a company’s “No Gossip Policy” violated the National Labor Relations Act. In an effort to slow down the rumor mill that the employer perceived to be plaguing a particular department, the company instituted a policy that “Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.” The policy defined “gossip” to include, among other things “talking about a person’s personal life when they are not present,” “talking about a person’s professional life without his/her supervisor present,” and “negative, or untrue, or disparaging comments or criticisms of another person or persons.”

The policy was cited later as one of the reasons for an employee’s termination (although the employer later took the position that it was actually the employee’s solicitation of other employees to work for a competitor that precipitated the firing). The NLRB held that such a broad “No Gossip” policy was a violation of the National Labor Relations Act because it prohibited employees from speaking to coworkers about discipline and other terms and conditions of employment. The NLRB contrasted the employer’s “No Gossip” policy with policies prohibiting “injurious, offensive, threatening, intimidating, coercing” conduct that were aimed at ensuring “civility and decorum” in the workplace, which the Board had previously upheld as lawful. The NLRB pointed out that the policy here was so broad that “read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present.”

Because the policy cited in the employee’s notice of termination was unlawful, the termination itself was found to be in violation of the NLRA. The employee was awarded backpay with interest. The company was ordered to cease and desist from maintaining or enforcing the illegal “No Gossip” policy and was ordered to post a notice drafted by the NLRB informing employees that the company had been found to have violated Federal labor law.

Although most employers would likely not go as far as the company in Henderson did, employers crafting policies that implicate employees’ rights to speak to each other about workplace related issues should take note of this decision. For example, more commonplace “confidentiality” policies may also have implications for employee rights under the NLRA.