Employers Cannot Require a “Positive Workplace”

If your employee handbook legislates that employees maintain a “positive attitude,” a recent NLRB decision might motivate you to make some revisions. The NLRA prohibits employers from maintaining workplace rules that would reasonably tend to chill employees in the exercise of their Section 7 rights (Section 7 gives employees the right to act together to try to improve pay and working conditions).  The law applies to rules that expressly prohibit protected activities and to rules that employees would reasonably construe to prohibit Section 7 activity.

A recent NLRB decision addressed an employer’s Workplace Conduct policy that included the following rule: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management.”

The NLRB found the requirements violated the NLRA because: “employees would reasonably understand the rule’s requirement that they communicate “in a manner that is conducive to effective working relationships” with coworkers and management as prohibiting disagreements or conflicts, including protected discussions, that the [employer] subjectively deems to not be conducive to ‘a positive work environment.’”

Fundamentally, the policy violated the NLRA because it suggested to employees that they were prohibited from engaging in contentious or controversial communications and discussions. As the NLRB explained: “Because labor disputes and union organizing efforts frequently involve controversy, criticism of the employer, arguments, and less-than-“positive” statements about terms and conditions of employment, employees reading the rule here would reasonably steer clear of a range of potentially controversial but protected communication in the workplace for fear of running afoul of the rule.”

The decision (which also addresses a number of other improper handbook provisions) is here: T-Mobile USA, Inc. Case No. 14-CA-106906. https://www.nlrb.gov/cases-decisions/board-decisions

 

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