Not Even on Your Own Time

Think that who you hang out with when you’re off the job is not the boss’s business? Think again, says the National Labor Relations Board (NLRB), in a recent 2-1 decision by the Republican majority which takes anti-fraternization policies much further than most employees would consider possible. The NLRB’s recent decision upheld a policy which made it against the rules for Guardsmark‘s security guards to “fraternize on duty or off duty, date, or become overly friendly with the client’s employees or with co-employees.” While the policy was ostensibly enacted for safety and security purposes, its chilling effect goes much further.

Guardsmark, who calls itself “the leader in security services,” added to its employee handbook the following provision:

While on duty you must NOT . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.

Guardsmark claimed this provision was necessary “to provide safeguards so that security will not be compromised by interpersonal relationships either between Respondent’s fellow security guards or between Respondent’s security guards and clients’ employees.”

The provision was used to punish a supervisor at San Francisco’s Fairmont Hotel, Daniel Higgins, when it was charged that “he was leaving his post unattended and becoming too friendly with some of the other employees.” (See The Desert Sun article.) This provision was challenged by the Service Employees International Union (SEIU), who argued that this kind of provision discouraged workers from exercising their 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…” as guaranteed by Section 7 of the National Labor Relations Act (NLRA).

After all, if you can’t get overly friendly with your fellow employees, or spend time with them away from the workplace, chances are good that you’re not going to feel safe complaining about work to someone you don’t know very well, and certainly aren’t going to take the chance of talking about banding together to join a union. Security guards are often isolated from their fellow coworkers anyway — often working in solitary assignments and odd hours — and this type of policy doesn’t help the situation.

Even the NLRB doesn’t agree about what “fraternization” means. The majority says that “we believe that employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act.” Personal entanglements –now that really defines it clearly. Where does friendship end and personal entanglement begin? Even as applied to dating, it becomes problematic: does the relationship have to assume a certain level of “seriousness” before it’s a personal entanglement? Does one date count? If one party is “personally entangled” on an emotional level, but the other isn’t, does that mean only one party is in violation of the policy? What about those who were personally entangled before the policy went into effect: does one of the two have to quit?

However, as the dissenter, Board member Wilma B. Liebman, astutely points out:

Here, a reasonable employee certainly could understand the Respondent’ rule to sweep much more broadly than prohibiting only personal entanglements with clients and coworkers. The rule already bars dating and becoming “overly friendly” with those individuals, so a reasonable employee might well conclude that the prohibition on fraternizing must apply to something else….The primary meaning of the term “fraternize,” in turn, is “to associate in a brotherly manner,” Webster’s New World Dictionary 555 (2d ed. 1984), and that kind of association is the essence of workplace solidarity.

(Guardmark, Member Liebman, dissenting in part.)

This case was brought under the NLRA, because that’s one of the few potential remedies for these kinds of policies. However, regardless of whether it chills union activity or not (and it seems clear that it would), should employers really be in the business of chilling employee friendships?

Amy Joyce, workplace columnist for the Washington Post, points out that “The Gallup Organization has studied workplace friendships and says that those who have friends at work, with whom they socialize both in and out of the office, are more engaged than those who don’t. Studies have also shown that having friends at work lowers turnover and increases safety.” (See Washington Post article.) Joyce’s article, “Undercover Friends,” discusses many situations where so-called “fraternization” helps both the workplace and its workers, and asks, “Will the ruling have the opposite effect and actually hurt morale and make guards less likely to discuss issues and possibly find new ways to protect the buildings in which they are stationed?”

Harold Meyerson, Post columnist, works up even more outrage about the decision:

There’s a word for the kind of employer-employee relationship that the NLRB has just sanctioned. It’s “feudal.” The brave new world that emerges from this ruling looks a lot like the bad old world where earls and dukes had the power to control the lives of their serfs — not just when the serfs were out tilling the fields but when they retired in the evening to the comfort of their hovels. But then the Bill of Rights in America has never reached very far into the workplace. And now, the strictures on workers’ rights within the workplace are being extended without.

(See Washington Post column.)

Let’s hope that too many more employers don’t decide to follow Guardsmark’s lead, but what’s the most frightening is that after the recent NLRB decision, they now have license to establish such restrictive policies. And if there’s not much to be done about under the NLRA, then there’s not much to be done about it period. Does Guardsmark really want its security workforce to be comprised of isolated loners? You wouldn’t think so: we’ll see if that so-called safety rationale really pans out.

More Information:

Workplace Fairness: Short-Changed: Privacy: No More Secrets

American Rights at Work: Eye on the NLRB

AFL-CIO: News for Working Families

Tracking image for JustAnswer widget
Tracking image for JustAnswer widget
Scroll to Top

Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.