DON’T WORRY, BE HAPPY (BUT THAT’S NOT AN ORDER)
As any great boss knows, a workplace with good employee morale is a more enjoyable workplace, which typically results in a more efficient and productive workplace. There are even studies that prove it. As such, as part of its employee policies, many employers encourage positive attitudes and communications amongst its employees, and some employers may even require such positive attitudes. Sounds like a reasonable concept, doesn’t it? Sounds like something that both employers and employees could get behind, right? Well, as the very wise Lee Corso would say, “Not so fast, my friend!”
NLRB T-Mobile Case
On April 29 of this year, the National Labor Relations Board (NLRB”) issued an order in T-Mobile USA, Inc. and Communications Workers of America and Communications Workers of America Local 7011, AFL–CIO indicating that an employer cannot have a rule that requires its employees to be “positive” or “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.”
In this matter, the union complained that T-Mobile’s handbook contained a number of provisions that violated the National Labor Relations Act (the “Act”), including certain policies that required a positive work environment and which specifically stated, “[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. 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.”
Policies Requiring Employees to be Positive Violate the NLRA
The NLRB agreed with the union stating, “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the Act, out of fear that the [employee] would deem them to be inconsistent with a “positive work environment.”
Section 7 of the Act is what gives all employees in our country the right to organize, bargain collectively, and “engage in other concerted activities…” or to “refrain from any and all such activities.” Section 8 of the Act then forbids employers from doing things that interfere with those rights.
The NLRB did distinguish the rule in question from narrower rules that prohibit things like “insubordination” or a negative attitude that is actually “disruptive … or has a negative impact” because this isn’t protected conduct. However, the NLRB determined the rule in question to be one that would either punish protected conduct or discourage it, stating, “employees would read the rule in context with other work rules, found unlawful here, prohibiting employees from “arguing” and from making “detrimental” comments about the [employer]. 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.”
For those employers believing that this decision does not affect their workplace because they are not a union shop, we remind them that certain portions of the Act apply to almost ALL private sector employers, whether they are a union shop, a non-union shop, or an “at-will” employer. Sections 7 and 8 of the Act are two such sections.
What’s an Employer to Do?
So employers, union and non-union alike, should be sure to check their handbooks and make sure they are encouraging, but not “requiring” or “expecting”, happiness and positivity from their employees. Of course, treating employees with happiness and positivity is still permitted and goes a long way to ensuring a positive workplace. Might we suggest – Hawaiian-shirt Fridays!
If you need assistance in developing policies that promote a positive workplace, or any other employment policies that are in compliance with the Act, HaasCaywood can help you.
- Joseph Haas
Blog 2, August 2016