What a lawful "civility" policy looks like under the NLRB's Boeing test

By: Jon Hyman

March 11, 2019

Consider and compare the following workplace civility policies:

Commitment to My Co-Workers

  • I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.
  • I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.
  • I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.
  • I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them, and ask you to do the same. 
-vs-
 
Blogging 
 
Blogging outside of the hospital must not include … disparaging comments about the hospital.
 
The NLRB Office of General Counsel concluded that the former was lawful under the NLRB's Boeing standard:
 

We conclude that the Commitment to My Co-workers document is a lawful civility policy.… [T]here is a distinction between regulations on what employees can say about their coworkers as compared to what they can say about their employer…. [W]hile protected concerted activity may involve criticism of fellow employees or supervisors, the requirement that such criticism remain civil does not unduly burden the core right to criticize. Instead, it burdens the peripheral Section 7 right of criticizing other employees in a demeaning or inappropriate manner.

Balanced against the minimal impact on Section 7 rights of these types of civility rules, employers have significant interests in maintaining such rules. These interests include the employer’s legal responsibility to maintain a workplace free of unlawful harassment, its substantial interest in preventing violence, and its interest in avoiding unnecessary conflict or a toxic work environment that could interfere with productivity … and other legitimate business goals.

While the latter was unlawful:

A rule prohibiting disparagement of the employer has a significant impact on NLRA rights. Concerted criticism of an employer’s employment and compensation practices is central to rights guaranteed by the NLRA. A general rule against disparaging the company, absent limiting context or language, would cause employees to refrain from publicly criticizing employment problems, including on social media. Such criticism is often the seed that becomes protected concerted activity for improving working conditions, the core of Section 7.

The entire memo is worth reading for a lesson on how the NLRB analyzes work rules under Boeing. And, if you haven't had an employment lawyer review your handbook or other work rules in the past few years, this is as good of a reminder as any that there is no time like the present.

This post originally appeared on the Ohio Employer's Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at jhyman@meyersroman.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.