Employers know that the NLRB has been closely scrutinizing workplace policies for several years now, looking to see whether they infringe on an employee’s right to engage in concerted, protected activities. Notably, in the last couple of years, the NLRB has found policies that prohibit employees from taking photos in the workplace, walking off the job during scheduled work hours, and even swearing to be protected concerted activities in particular circumstances. The crux of many of these decisions is that employers cannot stifle employees’ ability to criticize or complain with each other and to others about their wages, hours or working conditions.
Recently, the 5th Circuit Court of Appeals took a step towards balancing employers’ right to maintain a harmonious work environment against these broad employee protections. The court of appeals overturned an NLRB decision, which had been affirmed by the lower court, that T-Mobile policies which called for employees to maintain a “positive work environment” as well as prohibiting fighting, arguing and “failing to treat others with respect” were not so overly broad that most reasonable workers would perceive them as prohibiting workplace complaints or engaging in union organizing activities.
Describing the policies as “common sense civility guidelines”, the court noted that the rules did not prohibit even heated discussions or expressions of opinion on wages, or working conditions. The court noted that the appropriate test for whether a workplace policy is overly broad is how most employees would understand a rule, and not how any individual employee interprets it. In the case of the T-Mobile policies, the court found that requiring employees to treat each other with respect conforms to the law.
Employers should take note and review their policies to ensure that workplace rules are not overly broad and therefore oppressive of employee rights. It’s okay to prohibit fighting, of course, and even arguing, but not disagreeing or engaging in lively discussions about the workplace.
