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Thursday, April 10, 2014

Requiring Employees to be “Positive and Professional” May Be Unlawful

On April 1, 2014, a panel of the National Labor Relations Board (“NLRB”) held that an employer’s policy that, among other things, required employees to “represent [the employer] in the community in a positive and professional manner in every opportunity” is unlawful.  Hills and Dales General Hospital, 360 NLRB No. 70.  The NLRB reasoned that employees could reasonably construe this policy language to prohibit so-called Section 7 activity, which includes the right to act with other employees for mutual benefit and protection.  The NLRB said that policy language, particularly coupled with other unlawful policy language prohibiting “negative comments” and “negativity,” would discourage employees from publicly protesting employer conduct or making any public statements that are not perceived as positive toward the employer.

On April 2, 2014, the same NLRB panel held that employee handbook rules that prohibit “discourteous or inappropriate attitude to passengers, other employees or members of the public” among other things, was unlawful.  First Transit, Inc., 360 NLRB No. 72.  Again, the NLRB panel ruled that the language was so overbroad and ambiguous that it would encompass disagreements among employees relating to their Section 7 rights.

While the principles followed by the NRLB in these decisions are not new, their application to words and phrases commonly used in employee handbooks and policies is significant.  Further, while these cases may be limited to their particular facts, we nevertheless suggest that employers carefully review their employee handbooks policies to determine whether they contain similarly allegedly overbroad, ambiguous and possibly unlawful language.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact us if you have any questions.

This update was prepared by Charles S. Elbert.

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