No gossiping allowed… or is it?

An anti-gossip policy was ruled unlawful by a US court, but could New Zealand workplaces prohibit gossip?

No gossiping allowed… or is it?
A US college’s attempt to shut down gossip has landed it on the wrong side of the law. An employee fired for violating the college’s anti-gossip policy took them to court, which found in her favour ruling not only was her termination unlawful so to was the policy.

While gossip can be detrimental to a workplace, could a New Zealand organisation enforce such a document and how would the courts here view it? Employment lawyer Karen Radich, barrister with Clifton Chambers, shares her insights.

The US case
Laurus Technical Institute adopted a no-gossip policy in 2012 that prohibited gossip at work and subjected employees to disciplinary action for violations. The policy was distributed to employees and incorporated into the employee handbook.

It prohibited employees from participating in or instigating "gossip about the company, an employee, or customer." The policy defines gossip as "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 organisation.”

It is then further defined as  "1) Talking about a person’s personal life when they are not present; 2) Talking about a person’s professional life without his/her supervisor present; 3) Negative, or untrue, or disparaging comments or criticisms of another person or persons; 4) Creating, sharing, or repeating information that can injure a person’s credibility or reputation; 5) Creating, sharing, or repeating a rumour about another person; and 6) Creating, sharing or repeating a rumour that is overheard or hearsay."

An admissions representative, Joslyn Henderson, was subsequently fired for violating the policy, which included discussing with other admissions representatives recent firings in the department and job security concerns. Henderson challenged the dismissal in court arguing the anit-gossip policy went against America’s National Labor Relations Act (NLRA). The court agreed that the policy prohibited protected activity and that policy was “overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment.” The judge termed the rule “an expansive ban against any discussion”. The court ordered the college to stop enforcing its no-gossip policy and pay Henderson for her losses, including lost earnings and benefits.

A New Zealand viewpoint
Employment lawyer Karen Radich told HRM Online New Zealand employers can place limits on employees’ behaviour and conduct, such as with a published Code of Conduct or set policies but those limits need to be reasonable and lawful. 
While she has seen codes and policies that restrict employees from making public comments in relation to their employer’s business or seek to place boundaries on the way they behave to colleagues, she has never come across a direct ‘anti gossip’ rule. However, she adds that there are “provisions in New Zealand documents that may apply to the ‘gossip’ situations envisaged in the US case”.
She said: “The type of clauses in common NZ documents that might likewise cover these ‘adverse gossip’ types of situations are:
  • Not making any adverse public comment about the employer or any fellow employees
  • Maintaining professional behaviour at all times
  • Respecting privacy, including that of clients and co-workers
  • Maintaining high standards of integrity (particularly an issue in the state sector)
  • Recognising that you are part of a team at work
  • Working respectfully with your fellow employees
  • Communicating appropriately with your colleagues.”
Radich adds that in terms of the US definitions, she does not think a New Zealand employer could enforce items one and two in the list, “as they are more in the nature of just talking about someone”. 
“On the other hand, making negative or untrue comments or repeating rumours that might injure a person’s credibility (as with items 3-6 in that list) are more likely to be viewed adversely,” she said. “In this regard, the list of ‘bullying behaviours’ included in the new WorkSafe NZ Bullying Guidelines include a number of actions that are related to workplace gossip, such as: belittling remarks, attacking a person’s beliefs or appearance, ridiculing, insulting, teasing, jokes, insulting comments about private life, etc.  Bullying by colleagues is said to include put downs and unwelcome comments. So it may be that undesirable or harmful workplace gossip in New Zealand may comprise an example of ‘bullying’, as well as potentially breaching the above types of provisions.”
Radich concludes that unless an employer is experiencing a particular problem with harmful gossip, “I would not have thought that a specific ‘gossip’ policy is needed”.

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