The National Labor Relations Board (NLRB) issued a ruling on January 6, 2000 that ought to have employers worrying about their "do not discuss" policies. If the forbidden subject matter relates to terms or conditions of employment, the policy may be illegal.
Here's how the case of Lockheed Martin Astronautics arose. One of the employer's security guards developed a medical condition that required accommodation under the Americans with Disabilities Act. As an accommodation, she was relieved from the requirement of carrying a weapon and from handling classified trash.
All was not well in the inter-personal relations department. The other guards were concerned that she would not be able to provide adequate back-up, that they would have to do her trash work, and that she might get better assignments. They discussed whether to file a grievance. At the same time, the accommodated guard filed a grievance of her own, alleging the others were creating a hostile work environment by talking about her medical restrictions.
The solution seemed simple: direct the employees to stop the talk. And that's what the employer did. There seemed to be a strong legal reason to support the directive -- after all, the employer was obligated to prevent development of a hostile work environment, avoid harassment of and retaliation against employees with disabilities, and maintain the confidentiality of medical information. The NLRB recognized these obligations but held that the "do not discuss" order was still illegal because it was too broad and it interfered with the employees' exercise of their §7 rights.
Section 7 of the National Labor Relations Act protects the right of employees 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 mutual aid or protection. To be protected under the law, the activity must be "concerted" and it must either involve union-related aims, or other "mutual aid and protection." The protection applies both when there are unions and when there are no unions but employees act collectively. Any restrictions on an employee's exercise of rights protected by §7 must serve a "legitimate and substantial business justification" and be narrowly tailored in order to avoid unnecessarily depriving employees of these important rights -- even if the subject matter in question is separately covered by a different law.
The problem here, according to the NLRB, was that the employer "prohibited all discussion," when it could have prohibited discussion just "in ways that might be construed as harassing or retaliatory." "Avoiding conflict" is not a valid reason for a rule that infringes upon §7 rights. Along with other remedies, the employer
was ordered to cease and desist from discussing the potential effects of other employees' medical restrictions on their working conditions and from maintaining a rule prohibiting employees from discussing employee discipline and disciplinary investigations with anyone.
Many employers have rules that prohibit employees from discussing certain subjects such as wage and salary information, work related complaints, or the discipline of employees. Unless these rules are narrowly drafted they may well be illegal.
With 20-20 hindsight in this case, the employer could probably have avoided the Board's ruling if its instruction had been limited. For example, the employer could have done what the Board suggested and required any discussion to exclude anything that might be construed as harassing or retaliatory. The employer could also have imposed limited and reasonable "time, place and manner" restrictions on the discussions that might have addressed its concerns that the conversations were leading to on-the-job conflict.
"Do not discuss" rules in an unorganized workplace generally don't lead to enforcement proceedings. The limited number of reported NLRB decisions that address this subject suggests that they aren't a significant part of that agency's work. However, employers should be especially cautious when taking disciplinary action against any employee who has violated a "do not discuss" rule, particularly where the discussions are related to working conditions. The rule just may be illegal.