Gossip in the Workplace: A Right or Privilege?

On November 28, 2013, Joslyn Henderson filed a complaint against her former employer, Laurus Technical Institute (Laurus), with the NLRB’s Regional Office in Atlanta.[1] The complaint alleged that Laurus violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by “maintaining and enforcing an overly broad ‘No Gossip Policy,’ and by suspending and terminating the charging party for violating the ‘No Gossip Policy’ and engaging in protected, concerted activities.” [2] As expected, Laurus filed a timely answer effectively denying any and all unlawful conduct.[3] The legal issue presented in this case was whether or not an employer can implement a workplace policy effectively prohibiting all communication between employees that the employer deems to be “gossip” or not contributing to workplace productivity.

 

Laurus operates a private, for-profit technical school with three campuses in Georgia: Decatur, Jonesboro and Atlanta.[4] Henderson worked as an admissions representative at Laurus’ Decatur campus from October 2007 to November 2012, when she was suspended and eventually terminated for violating company policy. In February 2011, Laurus instituted a “No Gossip Policy” which stated that “gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.” [5] This particular workplace policy seems outrageously restrictive and unjust.  How can one’s employer ban them from discussing work issues with other managers and fellow co-workers? This places a huge burden on employers and employees’ ability to share knowledge and ideas in an effort to collectively and effectively work together.

 

On November 12, 2012, after a brief suspension, Henderson received a letter stating that she had been terminated for “willful breach of company policies and counterproductive behavior.”[6] Laurus alleged that they “lost confidence in Henderson’s ability to perform her job because her behavior was counterproductive to the team environment…and was having a direct negative impact on fellow coworkers.”[7] Shortly thereafter, Henderson filed a complaint with the NLRB; a trial was held on May 2013.[8]

 

The central allegation in the complaint filed by Henderson was that Laurus’ “No Gossip” policy violated Section 8(a)(1) of the NLRA, which provides:

 

[t]hat it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.[9]

 

The primary goal of the NLRA is to “safeguard employees who act together to discuss their working conditions, such as their pay, hours, discipline issues, etc…under this law, employees have the right to make work-related complaints about working conditions, including their supervisor [and] any action taken by employers to prohibit employees from engaging in these protected activities” is very much against the law.[10] For this reason, an NLRB Administrative Law Judge (ALJ) properly found Laurus’ “No Gossip” policy to be a violation of Section 8(a)(1) of the NLRA, ruling that Laurus’ policy “on its face prohibits protected activity.”[11] The “no gossip” policy was found to be “vague [and] overly-broad…narrowly prohibit[ing] virtually all communication about anyone, including the company and its managers… 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.”[12] 

 

 Laurus’ “No Gossip” policy “far exceeds the rule banning false, vicious, profane, or malicious statements toward or concerning the employer or its employees [previously] found to be unlawful.” [13] How can this Institute ever track their employee retention or satisfaction rates, if employees are never allowed to constructively voice their concerns?  Upon conclusion of the trial, the ALJ ordered Laurus “to cease and desist …from maintaining or enforcing any overly broad no gossip policy and to take certain affirmative action designed to effectuate the policies of the Act.” [14] Henderson was also awarded back pay with interest. On January 8, 2014, Laurus appealed the ALJ’s order by filing exceptions, and an accompanying brief, with the NLRB’s full board in Washington, DC. [15] A brief in support of the decision was entered shortly thereafter.[16] After reviewing the exceptions, the Board will decide whether to adopt or reject the ALJ’s recommended order. 

 

Regardless of the ultimate ruling, it is clear that this decision will have an impact on employers/employees in the future. Employers who want to limit workplace distractions will have to implement policies that do not infringe on the guaranteed rights afforded to individuals pursuant to the NLRA. A ruling in Henderson’s favor might have a deterring effect on all employers who disapprove of non-work related conversation in the work place. Such employers may become less inclined to discipline employees who spend too much time chatting at the water fountain. To some, it may seem that the legal implications stemming from the ALJ’s order are far too harsh on employers and way too lenient on those who are getting paid to work in the first place! However, when analyzed from an employee’s vantage point, the legal implications of a rule banning all “No Gossip” policies in workplaces would afford insurmountable amounts of comfort and freedom when speaking out against unfair and unjust working conditions. Loss of work time productivity is a primary concern of all employers, however, the thing of value to be considered in this case is the guaranteed right of freedom of expression, afforded to all individuals by the United States Constitution and in the NLRA.  Yet, to be fair,  if workplace conversations become too invasive or time consuming, rather than implementing highly restrictive policies, employers could employ incentive programs to increase workplace productivity and decrease gossiping.  This could prove to be a “win-win” situation for all involved.