NLRB – Employers Can’t Require A Positive Attitude

Stephen R. McCutcheon, Jr.

Customer service and employee civility in the workplace are important regardless of industry. National Labor Relations Board rulings make it difficult for employers to adopt standards for interacting with the public and avoiding conflict in the workplace. On April 2, 2014 the NLRB ruled that Hills and Dales General Hospital’s “Values and Standards of Behavior Policy” requiring employees to “represent [their employer] in the community in a positive and professional manner” and prohibiting employees from participating in “negativity or gossip” are overbroad and unlawful under Section 7 of the National Labor Relations Act.

To ordinary persons, it seems reasonable to require employees – the public face of a company – to exhibit a “positive and professional manner” to the public. To avoid harassment, squabbles, and hostility between employees, it would also appear reasonable to ask employees to refrain from “negativity or gossip.” While these prohibitions may further legitimate ends such as customer service and workplace civility, they can run afoul of the NLRA.

As part of its vigorous exercise of power, the NLRB is making a concerted effort to challenge employer handbook policies that can be construed to limit protected employee activity. Employers must consider that the NLRB will interpret their handbook policies in the most restrictive manner – and will ignore how the employer and employees themselves have interpreted policies – to find infringements upon Section 7 rights. Even if a handbook policy does not explicitly impact protected employee rights, it will be found unlawful if an employee “would reasonably construe the language to prohibit Section 7 activity.”

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