Labor Board Still Wants to Clarify Stance on Workplace Civility

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By Chris Opfer

The National Labor Relations Board’s top attorney plans to work with the Equal Employment Opportunity Commission to try to thread a needle between offensive speech that’s protected by federal labor law and comments that may be considered harassment under a separate workplace discrimination law.

NLRB General Counsel Peter Robb (R) will continue working with the EEOC on joint workplace civility guidance, a board spokesperson told Bloomberg Law March 6. EEOC Acting Chairwoman Victoria Lipnic (R) and Commissioner Chai Feldblum (D) worked on possible guidance with former NLRB Deputy General Counsel Jennifer Abruzzo before Robb was sworn in to his post in November.

Abruzzo’s departure from the agency and a subsequent board ruling overturning the NLRB’s approach to employee civility rules left the future of that initiative uncertain.

Advocates for businesses and worker groups generally applauded the effort when it became public in 2017, after one high-profile case clouded the line between harassment and protected speech on the job. A federal appeals court in St. Louis in August ordered Cooper Tire to rehire a worker who was terminated for shouting racial slurs at replacement workers during a strike.

The NLRB three months later overturned its controversial 2004 decision in Lutheran Heritage Village-Livonia, a ruling that had created some confusion about whether employers can enforce general civility requirements on the job without running afoul of workers’ right to engage in concerted activity. The board ruled in a December case involving Boeing that civility rules are generally acceptable under the National Labor Relations Act.

“EEOC staff continues to work cooperatively to explore whether and how to address issues that arise under both the NLRA and federal EEO laws,” EEOC spokesman James Ryan told Bloomberg Law. “There is no timeline at this point.”

The EEOC enforces Title VII of the 1964 Civil Rights Act, which bans a wide variety of discrimination and harassment on the job. The labor board enforces the NLRA, which generally protects workers’ right to act collectively on the job.

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