Employers That Enforce Civility Could Risk Liability

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By Kevin McGowan

Everyone wants to perform their jobs in a civil and respectful environment. But do workplace policies and training to promote such behavior violate federal labor law?

Sometimes they might, according to lawyers representing unions, employers and government agencies.

The Equal Employment Opportunity Commission is considering draft guidance on workplace harassment that says employers “may find it helpful to consider” civility training to prevent such harassment.

The business case for civility policies and training is apparent, said Jonathan Segal, a partner with Duane Morris in Philadelphia who represents employers. A respectful workplace attracts potential employees, improves employee retention and enhances the company’s reputation with potential customers and the public, he said.

But heated debate among employees, even if it includes uncivil or profane language, can be protected speech if it involves discussion of union organizing, wages, benefits or other employment conditions.

If an employer suddenly issues a workplace conduct policy while employees are considering union representation, that’s “certainly a red flag” for unions and employees, Katherine Hansen, a partner with Gladstein Reif & Meginniss in New York, told Bloomberg BNA.

In that context, the policy is “really designed to shut down lawful discussions” among workers about their employment conditions and the desirability of organizing, said Hansen, who represents unions.

Policies Can Suppress Lawful Speech

Section 7 of the National Labor Relations Act protects employees who engage in “concerted activities” for their “mutual aid and protection.” A company policy that prohibits profanity, verbal abuse or disparagement of the employer violates Section 7 if a reasonable employee could construe the rule to reach protected activity.

The National Labor Relations Board, and courts reviewing NLRB decisions, have interpreted the NLRA broadly to protect employees’ speech related to union organizing and working conditions.

The NLRB’s Section 7 test considers if the employer’s workplace rules were adopted during an organizing campaign or applied to speech involving representation, wages, grievances or other protected categories.

More difficult cases arise if an employer outside the organizing scenario adopts a facially neutral policy requiring employees to be respectful, not to engage in abusive speech or not to disparage or embarrass the employer.

The context of such general rules is critical, Hansen said. Words such as “abuse” or “harass” may be lawful as part of an anti-harassment policy, but more suspect if contained in a “general civility code,” she said.

For example, if an employer tells workers not to “disparage” the company, employees “don’t know where the line is drawn” between protected conduct and prohibited speech, Hansen said. “People are reasonably going to believe” a non-disparagement rule covers protected activity,.

Employer speech policies that are “generally unlawful” in the NLRB’s view are broad ones that aren’t linked to an anti-harassment policy and lack adequate examples to give workers notice about what’s prohibited, Hansen said.

The NLRB is more likely to uphold company policies that govern employee conduct toward customers or the general public, Hansen said.

Supervisors Can Be Covered

Managers and supervisors can be required to participate in civility training because they’re not employees covered by the NLRA, Segal said. Segal was a member of the EEOC’s harassment task force.

Employers should infuse the concepts of civility and respect into management training generally, including the anti-harassment and performance management components, Segal said.

Research shows if an employer treats its workers with respect and dignity, it has positive physiological and psychological effects on the employees, as well as being “the right thing to do,” Segal said.

Social Media’s Role

Workers’ increased use of social media has heightened employers’ interest in controlling employee communications, Hansen said.

In general, “employers have more of an interest” in regulating conduct within the workplace, she said.

But there are limits on employers’ control of workers’ communications.

The NLRB has said an employee who speaks negatively about his supervisor or the company in a social media post, for example, is protected under the labor act.

The U.S. Court of Appeals for the Second Circuit last month affirmed a board ruling that a New York restaurant unlawfully fired an employee who cursed out his supervisor on Facebook. The worker in the same post supported a union organizing drive.

Employee expression also has limits. The Second Circuit said the profane Facebook post was on the borderline of conduct for which an employee could lawfully be fired.

Gateway Drug to Harassment?

The EEOC recognizes that “broad civility codes” may raise NLRA issues and “potential tension” exists between employer policies calling for civility and respect and employees’ speech rights, EEOC Commissioner Chai Feldblum (D) told Bloomberg BNA.

An EEOC harassment task force in June 2016 issued a report from Commissioners Feldblum and Victoria Lipnic (R), now the agency’s acting chair, saying that civility training is a promising practice.

Feldblum said she and Lipnic were impressed by testimony during the harassment task force hearings that “incivility can be the gateway drug” to unlawful harassment.

That generated the agency’s suggestion that employers should consider civility training “purely as a preventive matter,” Feldblum said. We were “very clear” in the report that Title VII of the 1964 Civil Rights Act “isn’t a civility code,” she said.

Feldblum and Lipnic’s report therefore recommended that the EEOC and NLRB “confer and consult” about how civility policies can be reconciled with Section 7.

Staff from both agencies currently are meeting on that topic, Feldblum said. “Those are conversations that are ongoing.”

Changes Coming Under Trump?

If civility policies and training involve employees protected under the NLRA, it can be “riskier” for the employer, Segal said.

The NLRB during the Obama administration had “trouble” with workplace rules that refer to civility and respect, Segal said.

Once the Trump administration puts new Republican appointees in place, Segal said he hopes the board will “move the dial back” to say “there’s nothing wrong” under federal labor law with “asking people to be civil.”

It’s “actually quite demeaning” and “it hurts unions” to suggest employees can’t express themselves about wages, benefits and other working conditions without profanity or other conduct that goes over the line, he said.

Employers should remember an employee’s behavior must be “protected” as well as “concerted” under Section 7, Segal said.

So if an employee “yells and screams” at a co-worker and “calls him or her an idiot,” an employer still should be able to take corrective action even if a general civility rule might be problematic, he said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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