WASHINGTON — It is a regular pastime for co-workers to chat during a coffee break, at a union hall, or over a beer about workplace issues, good grilling recipes, and celebrity gossip. Yet a recent ruling by the National Labor Relations Board allows employers to ban off-duty fraternizing among co-workers, severely weakening the rights of free association and speech, and violating basic standards of privacy for America's workers.
So how did the NLRB decide to weaken fundamental workplace protections? Security firm Guardsmark instituted a rule directing employees not to "fraternize on duty or off duty, date, or become overly friendly with the client's employees or with co-employees." In September 2003, the Service Employees International Union filed unfair labor practice charges with the NLRB against Guardsmark, claiming that the company's work rules inhibited its employees' Section 7 rights.
Section 7 of the National Labor Relations Act grants workers the right to "self-organization, to form, join, or assist labor organizations…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..." While the law allows employers to ban association among co-workers during work hours, Guardsmark's rule was broader in that it applied to the off-duty association of co-workers.
On June 7, 2005, the Board ruled 2 to 1 that Guardsmark's fraternization rule was lawful.1 The Board majority argued that workers would likely interpret the fraternization rule as merely a ban on dating, and not a prohibition of the association among co-workers protected by Section 7. But the dissenting member of the Board pointed out that since the rule already mentions dating, workers would understand fraternization to mean something else. She noted, "the primary meaning of the term 'fraternize…[is] to associate in a brotherly manner'…and that kind of association is the essence of workplace solidarity."
While there are reasons for employers to ban dating among co-workers (namely to prevent sexual harassment), prohibiting off-duty fraternization is something quite different. Such a ban inevitably chills collective action of any sort—be it on a purely social basis or related to employees discussing whether to form a union or not.
Since employers are not obligated to inform employees of their legally-protected right to associate with their co-workers, how can we expect any employee to assume that a rule banning fraternization doesn't interfere with these rights? And why would someone risk violating a no-fraternization rule, given that most employees work 'at will'—meaning they can be fired for no reason?
America's workers need more opportunities to come together to discuss vexing workplace issues, or just to make personal connections with those we spend most of our waking hours with. But the NLRB gives employers the green light to invade our privacy and chip away at our most basic rights in the workplace.
