Workplace Culture

NLRB Positively Botches Decision Over ‘Positive Workplace’ Policy

By Jon Hyman

May. 11, 2016

Do you have a “positivity policy” like the following in your employee handbook?

The Company 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.

What could be wrong with a workplace policy that tells employees to “maintain a positive work environment”? Everyone loves positivity, right?
 


Everyone, that is, except the NLRB.

In T-Mobile USA [pdf], the NLRB struck down that innocuous, neutral handbook policy as a violation of employees’ section 7 rights.

The rule at issue here more broadly restricts employee communications and is not limited to conduct that would objectively be viewed as unprotected. Rather, we find that 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 Respondent subjectively deems to not be conducive to “a positive work environment.”

Translation? Good luck writing a handbook policy that even touches employee communications that will pass muster with the NLRB. On this issue, I, and employers everywhere, are positively glum.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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