February 2014

By: Alan E. Seneczko, Esq.

We all grew up being told not to gossip. A universal value. Our parents told us. Our teachers told us. Our pastors told us. We tell our kids the same thing. If you are an employer, however, you better not tell your employees – at least according to the NLRB.

In Larus Technical Institute, Case No. 10-CA-093934 (Dec. 11, 2013), an ALJ found that an employer unlawfully interfered with employees’ Section 7 rights when it maintained and enforced an overly broad “No Gossip” policy in its employee handbook. The rule prohibited, among other things, talking about a person’s personal life when they were not present; talking about a person’s professional life in the absence of a supervisor; making negative or disparaging or comments or criticisms about another person; creating, sharing or repeating information that could injure another person’s reputation; and, creating, sharing or repeating rumors.

Revisiting a long line of NLRB decisions in which work rules prohibiting “false, vicious, profane or malicious” statements were found to be unlawful, the ALJ found the employer’s No Gossip policy to be vague, overly broad, severely restrictive of employees’ right to discuss or complain about their terms and conditions of employment, and therefore unlawful. In doing so, she distinguished the employer’s policy from others found lawful, which were more narrow and aimed at ensuring workplace civility and decorum – such as policies that prohibited abusive and profane language, or offensive, threatening or intimidating behavior.

The “moral” of this story? Although it may seem entirely appropriate to prohibit gossip in the workplace, especially given its inherently pernicious and disruptive nature, it is very easy for language intended to address bad behavior to be construed to also extend to protected behavior (e.g., complaining about work, a supervisor, a co-worker, etc.). The more blurred the line; the more likelihood for trouble. (I suppose this can be said about many things.)

Questions? Contact Managing Shareholder Alan E. Seneczko of Wessels Sherman’s Oconomowoc office at (262) 560-9696, or email alseneczko@wesselssherman.com.