January 16, 2025
NLRB GC Advises Employers How to Balance NLRA Compliance with EEO Laws
What’s the issue? Section 7 of the National Labor Relations Act (NLRA) gives non-supervisory employees the right to act in concert related to their wages, hours, and conditions of employment. Section 8 prohibits employers from interfering with, restraining, or coercing employees in the exercise of those rights. Concurrently, EEO compliance requires employers to provide a non-hostile work environment, to prevent and correct unlawful harassment. So, what is an employer to do when an employee hurls racist, sexist or other slurs at one or more coworkers in the midst of a union organizing campaign or any other NLRA protected activity?
In 1946, the National Labor Relations Board (NLRB) established its concept of “animal exuberance.” This excused employees and protected them under the NLRA when “engaged in concerted activities [that] exceed the bounds of lawful conduct in ‘a moment of animal exuberance.’” The NLRB reinforced its position and cited this concept in a 2023 case. So, I repeat, then what is an employer to do?
On January 16th, the NLRB General Counsel issued a related memo GC 25-04 Harmonization of the NLRA and EEO Laws. Here is some guidance from that memo.
Employee Conduct in the Course of NLRA-Protected Activity
How should employers address an employee’s use of offensive language or conduct while engaged in NLRA protected activity when that conduct has EEO implications (race, sex, age, etc.)? Broadly, the GC suggests employers “routinely and consistently engage in preventive and corrective actions to comply with applicable legal standards under the EEO laws.”
Enforcing Workplace Civility Policies
The GC recommends that your policy include, “examples of the types of language and conduct it does and does not cover, and includes assurances, proximate to the rule itself, that the rule does not limit employees’ ability to communicate with each other, third parties, or their employer about their terms and conditions of employment, to make comments critical of their employer, or otherwise to engage in NLRA-protected activity.”
Investigative Confidentiality
When employers conduct workplace investigations, they may tell employees they interview to keep the conversation confidential and to not discuss it with any coworkers. The GC reminds us, “rules that preclude any communication about the allegations and investigation or that are applicable to any employee—victim, witness or third party— could be problematic for a number of reasons.”
What now? Talk to your company’s employment counsel for guidance on updating any related policies, programs, or practices.
