Guidance on stopping harassment without violating the NLRA is on the way
- The National Labor Relations Board (NLRB) is working with the U.S. Equal Employment Opportunity Commission (EEOC) to address what some say is a conflict between an employer's responsibility to protect workers from harassment and the requirement that it refrain from interfering with workers' rights to engage in concerted activity in an effort to improve their working conditions.
- The Board's acting general counsel, Jennifer Abruzzo, told attendees at the American Bar Association's Labor and Employment Law Conference Friday that NLRB is working with EEOC staff to develop joint guidance on how to square the National Labor Relations Act (NLRA) with Title VII of the Civil Rights Act of 1964.
- "We can’t use ... compliance with Title VII as a way to squelch workers' rights," Abruzzo said. "There’s always got to be a balance." Employers need to maintain order, but employees have a right to speak out about concerns. "So how do you balance the two?" she said. "That’s what we’ve been working on for you and hopefully we’ll get it out to you really soon."
EEOC recently announced the availability of "respectful workplace" training, which, in addition to some recent employee claims, prompted the concern about whether overly prescriptive rules about workplace behavior (like "no negativity" mandates) might chill workers' NLRA rights.
Commissioner Jenny Yang previously told HR Dive that the agency was in talks with NLRB to address those worries and Abruzzo's comments confirm that from the other side.
Whether this effort will survive a shift in leadership, however, remains to be seen. Abruzzo is set to be replaced any day, as is Yang. For now, employers will just have to hope that guidance does come "really soon," as Abruzzo predicted, and do their best to ensure that any ongoing civility training doesn't seem to discourage workers from exercising their NLRA rights.
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