The Underrated Importance of Fraternizing

This past week, the DC Court of Appeals upheld the ability of workers to fraternize. It’s a rather quaint word — fraternize — and you might even be forgiven for thinking it has something to do with the rowdy behavior in which some college-age men engage. But actually, it’s something that can — and should — be engaged in by everyone old enough to work: talking to your fellow employees about your workplace conditions, and how they can be made better. Some employers might be threatened by that, but perhaps they should be, if the possibility of employees sharing information has the potential to scare them so much. And the ability to have a tasty beverage and develop stronger social relationships with your coworkers while you’re doing it isn’t half bad either.

When this case last made news, in August 2005, the National Labor Relations Board had just ruled that 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,” was legal. See Not Even On Your Own Time. The decision meant that employee Daniel Higgins, could be fired for “leaving his post unattended and becoming too friendly with some of the other employees.” The Service Employees International Union (SEIU), had challenged Higgins’ termination, arguing that Guardmark’s 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).

Although a 2-1 majority (guess which way this Administration’s appointees voted?) ruled in Guardsmark’s favor, the dissent actually foreshadowed the most recent ruling. Board member Wilma B. Liebman, pointed 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.

Now it was the DC Circuit (the court to which the NLRB decision could be appealed) who would tackle the meaning of “fraternization.” (See Guardsmark v. NLRB.) First, the Court cited the dissent language mentioned above, making clear that it agreed with Board Member Liebman. Then it consulted no less than seven dictionaries to see if the definitions of fraternization used would shed any more light on the subject. Although the dictionary definitions varied slightly from one another, there was enough of a consensus on the definition for employees to reasonably conclude that a rule prohibiting “fraternization” would prevent them from discussing the terms and conditions of their employment with each other. That would violate the National Labor Relations Act.

The upshot is that while Guardsmark could prevent its guards from engaging in purely social activity, such as dating, it could not prevent “fraternizing,” since that could reasonably be understood to prevent talking about work during social events. If, for example, Guardsmark could prove that employees were engaged in purely social activities, they might have a chance to restrict that (although there’s a slim change of doing that: at most gatherings of coworkers I’ve been to, it takes quite a bit of time and/or alcohol consumption before people unwind enough to stop talking about work, and some people can’t seem to talk about anything else.)

This case also serves as an important reminder that the rights guaranteed by the National Labor Relations Act are not just for union members. While the cases often arise in the context of union organizing efforts, even if you’re not a member of a union, you have the right to fraternize; i.e., to “to associate or sympathize with as a brother or as brothers (or sisters, to keep it gender-balanced)” (Oxford English Dictionary); “be on friendly terms” (Merriam-Webster’s Collegiate Dictionary); or my personal favorite: “engage in comradely social discourse” (American Heritage Dictionary).

And if you’re not doing that already, you’re probably missing out — and so is your employer. One workplace commentator notes:

Statistics show that many of us spend more of our waking hours at work than at home, so it makes sense that our work relationships sometimes morph into those resembling familial ones….Familial relationships are inevitable in any workplace. Fortunately, having a diverse mix of characters in your work family can be beneficial-it can bring depth and color to your organization.

(See Boston Globe article.) A recent Gallup poll found the following:

People who have a best friend at work are seven times more likely to be engaged in their job. They get more done in less time. They also have fewer accidents, have more engaged customers and are more likely to innovate and share new ideas.

(See USA Today article.) That’s the kind of employee everyone should want to be — and what employer wouldn’t want employees who are more engaged, productive and innovative? Obviously, friendships can’t be forced, and it’s perfectly possible to do a stellar job at work without fraternizing with your coworkers. But if you’re resisting making friendships at work just because you think it’s not a good idea or will interfere with your work, then perhaps it’s time to rethink that. And if it’s the result of a policy your employer has against it, then it’s certainly time for your employer to rethink that, based upon the Guardsmark decision.

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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.