By Jordan Jeter
Company culture in Portland places a high premium on work-life balance, collaboration, sustainability, and inclusivity – striking a balance between being “The City that Works” and “Keep(ing) Portland Weird.” Business leaders and employees alike know that the atmosphere of a workplace depends entirely on the people. And few things erode that atmosphere faster than workplace gossip.
But business leaders beware: what sounds like gossip to a manager may qualify as protected activity under the law.
Employees have a legal right to complain about their job – or, in legal terms, to discuss the terms and conditions of their employment. More specifically, the National Labor Relations Act (NLRA) protects most private-sector employees’ rights to organize, form unions, and engage in collective bargaining or concerted activities for mutual aid. Often associated with unionized workplaces, the NLRA applies more broadly, protecting employees’ ability to discuss wages, benefits, and working conditions even in non-union settings.
So what does that mean for your company? Employers must tread carefully when workplace “gossip” is about work itself. Conversations that may seem unproductive or negative can still be protected, and employers who discipline or attempt to shut down such discussions risk legal exposure.
Some situations are straightforward. For example, two employees discussing their pay and how they believe the company should pay them more. That is clearly protected. Even if the conversation feels like gossip, it is not something employers should police.
Other scenarios are trickier. Consider an employee who frequently complains to coworkers about a supervisor’s “unrealistic” expectations. Is that protected? It could very well be. After all, those expectations are part of the employee’s working conditions. In these cases, a blanket prohibition or discipline is risky. A better approach is to address the underlying condition and give the employee a more appropriate venue to air their concerns – reducing workplace friction without infringing on protected rights.
That said, protection has its limits. An employee cannot, for example, hurl profanities or insults at their supervisor under the guise of discussing “working conditions” or spend hours on end talking to coworkers to the detriment of deadlines and deliverables. Employers can – and should – hold employees accountable for profane, derogatory, or harassing language, and enforce reasonable standards for productivity and attentiveness to work responsibilities. The distinction is critical: the law protects what is being discussed, but not necessarily how it is expressed. Employees are free to raise concerns, but they can still be expected to do so in a respectful manner and through appropriate channels.
When gossip is unrelated to work – say, commentary about a colleague’s appearance or off-key singing at the company talent show – employers have more latitude to take action. Left unchecked, that kind of gossip can create a toxic work environment, reduce productivity, and drive away talent. It may also cross the line into unlawful harassment, particularly when it targets an individual. In those cases, employers must promptly intervene and take appropriate remedial action.
One tool employers may consider is an anti-gossip policy that clearly sets expectations for workplace conduct. As with any policies regulating employee speech, careful drafting is key. Such policies must make clear that they will not infringe on an employee’s rights to engage in concerted activity under the NLRA. Additionally, under the Oregon Workplace Fairness Act, employers cannot discourage or prevent employees from disclosing factual information relating to discrimination or sexual assault. Those protections must be explicitly acknowledged in the policy and its implementation.
Workplace gossip is a fact of life. And managing it effectively requires nuance. Employers must foster a positive, respectful culture while ensuring that employees’ rights remain intact. Striking that balance is key to maintaining both compliance and a healthy workplace.
If your business needs help navigating complex workplace dynamics or implementing effective policies, experienced counsel at Tonkon Torp can help tailor solutions to your organization’s needs.
