Could a simple policy expecting employees to act with courtesy in the workplace be illegal?
According the National Labor Relations Board, it could.
The NLRB recently decided that an employer policy intended to promote courtesy and decorum unlawfully chilled their employees' federal right to engage in conversation among themselves aimed at improving their working conditions or petitioning their employer or union to do so.
The policy seemed simple on its surface: "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of [the employer]."
The NLRB reasoned that employees "could construe" this language as prohibiting conversations with their co-workers, supervisors, managers or third parties about objections to their working conditions and support of efforts to improve them. The policy was therefore held to be unlawful, even though no employee had been disciplined under it.
Some employers may contend that this decision takes the "could construe" reasoning to an extreme. As noted in the dissenting opinion, the issue should be whether employees would "reasonably" understand a challenged policy to prohibit protected activity, not whether the language "could possibly" do so.
Until the pendulum swings back to another interpretation, the NLRB decision stands as law. Employers are well-advised to keep this in mind in drafting workplace policies and rules. Employers should not over-reach in their efforts to maintain appropriate levels of decorum in their workplaces.
While profanity can certainly be prohibited, "respect" in the workplace, as anywhere else, cannot be achieved through mandate.
-- Jane Lewis Volk
Meyer, Unkovic & Scott
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