Is It Illegal for Your Boss to Tell You to Look Happy?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 11, 2016

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Customer and StaffEspecially when employees work in customer-facing jobs, employers often want them to present smiling faces and positive attitudes.

But according to the National Labor Relations Board, that can be illegal.

A recent case reported by the National Law Review, addresses the T-Mobile employee handbook which included the following provision:

[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.

“Tend to Chill”

According to the Board’s decision, employees might “reasonably construe” the language in the handbook to prohibit unionizing activity.

An employer violates federal labor law when it maintains workplace rules that would “reasonably tend to chill” employees in their right to organize and seek to unionize.

The Board found that the “positive work environment” policy could be reasonably construed to “restrict potentially controversial or contentious communications and discussions.”

No Recordings

The Board also found that it was illegal to prohibit employees from making audio or video recordings in the workplace, because it “unlawfully restricts employees from using cameras and audio and recording devices in the workplace to assist in, support, and get evidence of protected concerted activity.”

In previous cases, the Board found that “photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media,” may be protected by federal labor law, “if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”

Recording should be permitted, said the Board, when recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

An “overriding employer interest” would include prohibiting people from recording confidential information.

Orders to be Positive

Writing about the case in The New Yorker, Maria Konnikova noted that “ordering” people to be positive can be ineffective (as well we potentially illegal).

An organizational psychologist at Penn State said that:

When anything feels forced or externally controlled, it doesn’t tend to be as beneficial as when it’s coming from the self. The irony is, when you’re trying to get people to do something positive, you can’t do it. Once it’s required, it’s fake and forced. What you create instead is a negative backlash. It feels like Big Brother.

Worrying about whether you’re violating a “feel good” policy can cause mental strain and even impair memory, self-control, and problem-solving.

Takeaway

If you run a business, you might want to think twice about trying to force your employees to be positive. Creating a positive and supporting work environment, rather than imposing positivity by command, is likely to be more productive — and safer legally.

If you work in an environment where you’re required to be positive, you don’t necessarily have free reign to be a grump — especially when dealing with customers. But a “positive” policy can’t interfere with your rights to unionize and deal with unsafe and/or illegal workplace conditions.

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