July 21, 2020

NLRB Balances Workplace Civility & Section 7 Rights

For the last several years, the National Labor Relations Board (“Board”) has struggled with how to balance non-supervisory employees’ Section 7 rights under the National Labor Relations Act with employers’ obligations under Title VII of the Civil Rights Act of 1964 and several other laws to provide a non-hostile, harassment-free work environment. So much so, the U.S. Equal Employment Opportunity Commission took it upon themselves to reach out to the Board. In 2016, the EEOC wrote, “In light of the concerns we have heard, we recommend that EEOC and NLRB confer and consult in a good faith effort to determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA.” This past November, the EEOC chimed in again. The EEOC submitted comments to the Board in an amicus brief urging the Board to “consider a standard that permits employers to address such [harassing] conduct, including by disciplining employees, as appropriate.”

What’s it all about? Section 7 of the NLRA gives non-supervisory employees the right to act in concert related to their wages, hours, or conditions of employment.  Section 8 of the NLRA prohibits employers from restraining, coercing, or interfering with employees’ exercise of those Section 7 rights.

In prior decisions, the Board has found egregious conduct engaged in by employees while exercising their Section 7 rights, such as during union organizing campaigns to be legally protected.  And, I do mean egregious!  Cases have included directed profanity, racial slurs, threats and more.  Mean, nasty stuff. Back in 1945, the Board used the term “animal exuberance” to describe the most offensive conduct.

I am SO pleased to report that on July 21st the Board announced that it would apply a new rule when it comes to balancing the demand for workplace civility and respect with employees’ right to exercise their Section 7 rights.  Abusive conduct and Section 7 activity are not inseparable.  Accordingly, employers may take adverse employment action against an employee who engages in inappropriate conduct, so long as the employer was not motivated by an animus against Section 7 activity and can show it would have taken the same action absent the Section 7 activity.

Tips: In 2016, the EEOC also recommended that employers “reboot” their harassment-prevention training programs. The guidance references “civility” at least six times and suggests employers talk to employee about workplace civility and well as exercising bystander intervention.

Caution: Shameless, self-promotion follows – If you don’t have those components in your current training programs, contact FiveL Company to discuss these and other training opportunities (“live” remote, recorded and “on demand” all available).