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NLRB Rejects General Employee Behavior Standards in Code of Conduct

    Client Alerts
  • May 04, 2016

The National Labor Relations Board continues its assault on employer handbooks and other policies it considers to impede employees’ rights to engage in protected concerted activity under Section 7 of the NLRA. Last month, the Board declared illegal nurse and physician conduct policies intended by a hospital to promote patient welfare.

In William Beaumont Hospital, the employer terminated two nurses based on bullying and intimidating activity toward new employees. The nurses filed unfair labor practice claims with the NLRB, alleging that the hospital’s Code of Conduct provisions containing prohibitions against this behavior violated their Section 7 rights. Among the policies challenged were those that prohibited employees from verbal comments directed at others beyond the bounds of fair criticism, behavior that is counter to promoting teamwork, conduct that impedes harmonious interactions and relationships and a prohibition against negative or disparaging comments about the professional capabilities of an employee or physician.

The NLRB concluded that these provisions could chill employees’ Section 7 rights, even in the absence of evidence that they were adopted or had ever been used for this purpose. Importantly, the Board rejected the employer’s (and a dissenting member’s) position that these policies were justified as directly contributing to patient safety and health. While the Board upheld several portions of the Code it deemed to directly impact patient health, the NLRB refused to make a patient safety exception from its general prohibition against policies considered vague and unspecified.

This case illustrates the current Board’s view that employee Section 7 rights outweigh virtually every employer or public interest in broadly controlling employees’ ability to openly and publically complain about their terms and conditions of work. In this situation for example, a nurse would engage in protected conduct by telling a patient about her concerns over a physician’s behavior, attitude or competence, even if such discussion might prove detrimental to that patient’s wellbeing. Open arguments among the medical team treating the patient could be considered legally protected behavior.

To avoid this outcome, employers would need to develop very specific conduct policies. These can include prohibitions against threats, humiliation and harassing conduct.  However, the NLRB has repeatedly demonstrated its unwillingness to accept any employer policy that seeks to generally prevent gossip or workplace criticism, or require that employees maintain a civil working relationship with their colleagues or supervisors.