NLRB Stretches Section 7 to Protect Workplace Gossip

By William Peacock, Esq. on January 16, 2014 | Last updated on March 21, 2019

Dirty, dirty gossip. It has no place in the workplace, unless you are the enterprising sort who uses it to your advantage. However, for employers, it usually hurts more than it helps.

Easy solution: ban it. After all, free speech doesn't extend into the private workplace, does it?

It's not a bad idea, but if you do ban office gossip, just be sure to provide a Section 7 exemption.

Concerted Activity Speech -- This is a Theme

This isn't the first time the National Labor Relations Board has invoked Section 7 to protect workers' speech. In multiple decisions regarding workplace social media policies, the NLRB has held that vague policies, generally containing anti-disparagement language, are invalid under Section 7 because the overly-broad language could be interpreted to restrict protected speech about working conditions, such as pay and hours.

Workforce reports that Section 7 has reappeared, but this time in a different context: office gossip.

That's right, a policy banning, "OMG, did you hear about Jane getting fired? And like, Joe is totes crushing on his new assistant," might not survive under the NLRB's ever-broadening Section 7 interpretation.

The Laurus Technical Institute Case

LTI had a policy prohibiting employees from "talking about a person's professional life without his/her supervisor present," as well gossiping about a person's personal life outside of his or her presence, making any disparaging comments or criticism of coworkers, or creating, sharing, or repeating of rumors that could damage coworkers' reputation or credibility.

The facts of the case are pretty unremarkable: LTI cleaned house in its admissions department, and other employees were gossiping about who was next. One employee was reaching out to contacts in other trade schools on her coworkers' behalf. She was canned.

The NLRB Administrative Law Judge invalidated the company's policy, finding that it was vague and overly-broad (the same criticisms used by the NLRB against companies' social media policies):

A thorough reading of this vague, overly-broad policy reveals that it narrowly prohibits virtually all communications about anyone, including the company or its 15 managers. In fact, 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. Such an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity, and violates Section 8(a)(1). A reasonable employee would certainly view it as doing so.

Tweaking Your Company's Policies

Whether or not your company has an anti-gossip policy, it would be advisable to check any of your company policies that might affect speech, including your social media policy. Policies that restrict speech in any forum should explicitly exempt speech about working conditions, pay, hours, and any other Section 7-protected topics. Otherwise, your speech-curtailing policy could backfire, if it could be interpreted (or stretched) to cover protected topics.

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