|Jane Lewis Volk, Esquire|
On September 28, 2012, the National Labor Relations Board ("NLRB") issued a decision that should be of interest to all employers who hope to foster courtesy in the workplace while staying within the limits of the law. In Karl Knauz Motors, Inc., 358 NLRB No. 164, the NLRB reasoned that an employer's policy, intended to promote courtesy and decorum, unlawfully chilled their employees' federal right to engage in conversation aimed at improving their working conditions or petitioning their employer - or a union - to do so.
The policy in question provided:
Courtesy: 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 seeking the support of others in improving them. Employees could construe protest or criticism of the employer as "disrespectful" or "injur[ious]to the image or reputation of the employer" and thus fear to seek improvements in the workplace. For that reason, the policy was held to be unlawful, even though no employee had been disciplined under it.
Employers will understandably believe that this decision takes the "could construe" reasoning to an extreme. As pointed out 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.
While the pendulum on this issue may swing back to a more reasonable interpretation, the decision stands as law and represents the position that will be taken by NLRB agents in reviewing employment policies. Employers are well-advised to keep this in mind in drafting workplace policies and rules. Employers should not over-reach in their understandable 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. Respect for your employees' rights will, one would hope, engender their respect for your employment policies.