- The 5th U.S. Circuit Court of Appeals ruled in favor of T-Mobile US, Inc. and found that a requirement that employees maintain a "positive work environment" is allowable, calling the National Labor Relations Board (NLRB)'s attempts to strip the rule "unreasonable," Reuters reports.
- The NLRB originally found 15 personnel rules that it said interfered with employees' concerted activity rights. T-Mobile appealed four of those findings, including one on "maintaining a positive work environment" and another on "prohibiting access to electronic information by non-approved individuals." The court also found that "no employee could reasonably believe" that general workplace safety rules would chill protected speech.
- The court did accept an NLRB order calling for an end to a recording ban in the workplace, noting that it was too broad and could easily be seen as discouraging concerted activity.
The NLRB has sought to expand the reach of protected or concerted speech for some time, and has fought against rules enforcing a "positive work environment" before. The board won in a case against Chipotle, calling its policy that prevented workers from speaking poorly about the company on social media a National Labor Relations Act violation. But with a new administration — and now, a Republican majority in place on the board — change is likely on the horizon.
Until recently, the NLRB sought to expand the definition of protected speech in almost every respect. Even the U.S. Equal Employment Opportunity Commission has responded contrarily to NLRB’s defenses in some of these cases, as civility is not often considered in the context of protected activity. But now, with a Republican majority, it is likely the NLRB will swing the pendulum back the other direction and walk back some of its positions.
The shift could take a considerable amount of time, however. Employers should continue to comply with current NLRB guidance as it stands until any official changes are made.