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No Talking Rules at Work

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

Some employers are quick to impose rules or policies that make the work day miserable for employees. There is nothing illegal about this. In general, an employer has the legal right to establish formal or informal rules that are unfair, obnoxious, harsh, or make no sense.

There are some limits on an employer’s right to establish work rules, including “no talking” rules. These limits mostly involve public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see our guide to at-will employment which explains this in more detail: An Overview of At-Will Employment(all states).

The two most common laws that employers break when they institute “no talking” policies are discrimination laws and laws related to unions.

Discrimination: An employer violates the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17 (Title VII) if it limits employees’ freedom to communicate based on the language spoken. Title VII applies to most, but not all, private sector and public sector workplaces that have at least 15 employees.

Suppose the workers in one department primarily or exclusively speak English and the employees in a second department primarily or exclusively speak Spanish. The employer may not institute a rule that prohibits employees in the second department, but not the first department, from talking to each other (either from talking at all, or talking in Spanish) unless there is a legitimate business reasons to do so.

Wages, hours, and terms of employment: The same law that protects unions protects non-union employees who engage in something called “protected concerted activity.” Under the National Labor Relations Act (NLRA), employees have the legal right to work together for their mutual aid and support. The NLRA applies to most, but not all, private sector employers that have at least two employees and are engaged in interstate commerce.

The right to engaged in protected concerted activity is broadly interpreted. For example, the NLRA makes it illegal for an employer to impose a rule that prevents or limits employees from talking about working conditions, job safety, or how much they make.

Therefore, although an employer can impose a ridiculous or oppressive rule, it cannot do so if it tends to coerce employees out of taking advantage of their rights under the NLRA, or if the rule prohibits employees from exercising those rights, including the right to talk about wages, hours, and working conditions.

This means that an employer can impose a work rule for some or all work areas that prohibit employees from talking about anything other than work during work. However, it cannot selectively enforce the rule. If the employer allows employees to talk about sports, recipes, kids, the weather – anything – it has to allow workers to talk about wages, hours, and terms of employment, and unions.

An employer cannot impose a rule that prevents workers from talking during non-work time: before work, after work, during rest breaks, during meal breaks, even if on the company's property.

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