Can Workplace Gossip Be Eliminated?

Can Workplace Gossip Be Eliminated?

Recent news stories from the world of politics have brought attention to a common workplace problem: gossip. Merriam-Webster’s dictionary defines gossip as “a person who reveals personal or sensational facts,” and “rumor or report of a personal nature.” These definitions reveal something important about gossip: It has two parts–the teller and the message. Without the dubious motivations of the teller, no unpleasant rumor gets spread.

The motivations of the teller can do more damage than the story itself. For example, if ordinary office chitchat reveals a detail of someone’s personal life, no harm is done unless someone relays that detail–typically with embellishments–as a negative. Gossip can even turn good news into bad. For example, if the news around the break room is that someone did well and was praised for it, gossip can turn that fact into favoritism or sucking up. The negative effects of gossip have been on display in the news, including:

  • Reduced morale
  • Potential liability for the employer if a target of gossip sues or otherwise seeks revenge
  • Higher turnover as targets of gossip seek employment elsewhere or gossips get fired
  • Reduced productivity as gossip takes the place of work

It would seem that since gossip has so many negative consequences, people would not participate in it–and some don’t. But like lying, gossip does have a social function: Both can help people avoid losing face or causing others to lose face. For example, when word gets around that a certain topic is sensitive with someone, considerate people will avoid that topic with that person. Given all the negatives about gossip, however, it is understandable that managers would want gossip eliminated in the workplace.

Can Gossip Be Banned?

Managers can set a good example by not participating in gossip and shutting gossip and gossips down whenever possible. A simple rule is to say nothing about Person A outside of Person A’s presence that one would not say in Person A’s presence. Furthermore, employee handbooks can remind employees not to engage in forms of verbal abuse. For example, a Walmart employee handbook found online forbids ethnic slurs, stereotyping, sexist jokes, teasing, bullying and disrespect. The manual does not forbid gossip itself, however. One possible reason for this omission: It can be illegal to forbid gossip.

More than once, the National Labor Relations Board has ruled that provisions in employee handbooks that forbid gossip entirely are too broad and thus unenforceable. Gossip cannot be banned in the workplace.

The reason for this is that there are some topics that employees are allowed to talk–or gossip–about. These include pay, hours, and working conditions. An employer who tries to prevent what the law calls “concerted activity”–which includes talking about working conditions–may be in violation of the Section 7 rights of employees. This refers to Sections 7 and 8(a)(1) of the National Labor Relations Act.

As the NLRB puts it:

Section 7 of the National Labor Relations Act…guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.

In short, Section 7 of the NLRA lists some employee rights that employers cannot take away, and Section 8(a)(1) forbids employers from doing things that take away the rights listed in Section 7.

Some NLRB Cases

One frequently cited case is Laurus Technical Institute, which arose in Georgia, right-to-work state. In that case, an administrative law judge ruled that a nonunion “employer’s ‘no gossip’ policy contained in its employee handbook violated the National Labor Relations Act.”

The employee handbook said:

Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction. It has the potential to destroy an individual and is counterproductive to an organization. Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility.

The handbook also defined gossip very broadly. For example, gossip included discussion about an employee’s personal life outside their presence. This could include something as well-intentioned and socially acceptable as passing around a sympathy card after a death in an employee’s family, during the employee’s absence. Another overly broad definition of gossip included sharing negative information about someone outside their presence. Unfortunately, it may sometimes be necessary to do just that, for example to report unacceptable or dangerous behaviors of an employee.

An employee handbook should not require employees to keep things positive in their speech. If there is an unsafe condition at work, or bullying or harassment is taking place, it is against the law to forbid employees to discuss it.

Another example is Hills and Dales General Hospital. The ruling in that case states:

The Employer promulgated a Social Media Policy and Procedure to employees via its “Internal Intranet Employee Handbook” and by postings on bulletin boards. While certain provisions of the Employer’s social media policy raised concerns of potential interference with employees’ Section 7 rights, there is no evidence that these rules were implemented in order to chill employee rights, or that the policy had been enforced, and on [date], the Employer removed the Social Media Policy and Procedure from its intranet handbook and notified all employees by email that the policy was withdrawn. As the Employer completely rescinded the policy and published that rescission to employees, it would not effectuate the purposes of the Act to issue a complaint.

When the employer dropped its offending policy, which evidently had caused no harm to the rights of the employees, the NLRB dropped the case.

Another case shows how one gossip can lead to legal expense even if the gossip quickly loses at court. In Hyundai American Shipping Agency, the court observed that when one employee was “out sick for several days,” another employee sent an e-mail to various other employees claiming that she had seen the absent employee “partying in Las Vegas.” The victim of this gossip learned of the e-mail and “became distressed by it.”

The NLRB took no issue with the gossip’s dismissal but did find that that the employee handbook’s rule against “[p]erforming activities other than Company work during working hours” was in violation of the NLRA. This is because employees may engage in concerted activities during breaks, and breaks are included in “working hours” (but not “working time”).

Ban Harassment Instead

So, how can gossip be banned without running afoul of the law? As the example of the Wal-Mart manual shows, one way is to forbid the content of negative gossip rather than gossip itself. An advisory letter from the Equal Employment Opportunity Commission offers an example. In the letter,

The commission approves language in an employee manual that forbids:

Gossip regarding – an individual’s sex life, comments on an individual’s body, comments about an individual’s sexual activity, deficiencies, or prowess, or other lewd or obscene comments.

While the word gossip is used, the act being forbidden is verbal sexual harassment.

Conclusion

Although the word gossip has a negative connotation, it can be argued that there is a such a thing as beneficial gossip. For example, when employees share the news that an absent employee has suffered a tragedy in their personal life and take steps to show their appropriate condolences and respect, they are participating in a form of gossip, even if that word is not likely to be used. Gossip has a negative connotation, but it is similar to news. Perhaps for this reason the word has little application in law. More than once, the NLRB has ruled that workplace bans on gossip are overbroad. More specifically, bans on gossip in employee handbooks have been found to interfere with the rights of employees to discuss such matters as wages, hours, workplace policies, and safety. Therefore, employers may not be able to ban gossip, but managers lead by example in limiting workplace gossip as much as possible.

About The Author

Eric Howard is a legal editor who lives in Los Angeles.

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