Bobby McFerrin better steer clear of T-Mobile. Despite its earworm catchiness, T-Mobile's adoption of the credo from his hit song, "Don't Worry Be Happy" recently landed the company in hot water.

Employee Handbooks are a good thing. They put all your policies in one place and permit your employees to know what you, as an employer, expect. T-Mobile tried to set expectations with its workforce and it bit them. Hard. T-Mobile's handbook established a general guideline on workplace respect and stated: "[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management." It's a simple, broad policy—almost a "golden rule" for the workplace. Sounds reasonable, right? Ha! That's where you made your first mistake.

The National Labor Relations Board (NLRB) has recently begun examining employer's policies to confirm that, even for nonunionized workplaces, the policies do not have a chilling effect on the ability of coworkers to organize or otherwise engage in discussion about workplace grievances. This is part of what is covered by the National Labor Relations Act (NLRA). For some time it has been the law that a policy that forbids employees from discussing pay or benefits violates the NLRA, as it chills worker's protected communications about pay under Section 7 of the NLRA. Recently, though, the NLRB began stepping up its enforcement efforts on language in employee handbooks, including specific prohibitions on the following types of policy language:

  • "Taking unauthorized pictures or video on company property is prohibited."
  • "Employees may not engage in any action that is not in the best interest of the Company."
  • "Be respectful of others and the Company. "
  • "If something is not public information, you must not share it."

Additionally, they have found restrictions on social media usage, repeated references to at-will employment or references to at-will employment closely juxtaposed language regarding making complaints could chill worker's efforts to discuss workplace issues, including organizing the workforce, and have been a source of recent enforcement actions.

The NLRB's recent case against T-Mobile shows just how far the NLRB is sometimes willing to go to second-guess policies. In T-Mobile USA, Inc. and Communication Workers of American and Communications Workers of America Local 7011, AFL-CIO, the NLRB brought an enforcement action seeking to declare certain policies in T-Mobile's employee handbook to violate the NLRA. That's right; your best efforts to create policies to help avoid liability could in fact create liability. Head spinning yet? The NLRB argued, successfully, that rules that declared employee salary information confidential, declared the handbook itself confidential, among others, violated the NLRA. The Administrative Law Judge (ALJ) agreed. Upon review to the NLRB, the NLRB disagreed with the ALJ and found additional T-Mobile policies unlawful, including what I called the "golden rule" policy quoted above. They held "[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a 'positive work environment.'" Really.

I view this holding as an evisceration of the sentiments of Bobby McFerrin, Pharrell Williams and the Youngbloods (1967's "Get Together" for the youngsters out there), in favor of a paraphrased Lesley Gore mentality, "It's My Party and I'll Gripe If I Want To." In light of this ruling, have your policies and handbooks reviewed. Even a well-intentioned policy, such as T-Mobile's golden rule, could put you in a world of "Hurt" and you definitely want to leave the covers of this song to Nine Inch Nails and Johnny Cash, not you or your employer.

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