National Dialogue on Sexual Harassment Spills Into Labor Board

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By Hassan A. Kanu

The federal labor board could soon be thrust into the ongoing national conversation about workplace sexual harassment.

Broadly stated, the National Labor Relations Board’s existing case law says a worker’s individual harassment complaint should be considered concerted activity protected by federal labor law so long as the worker tries to enlist her co-workers’ help in filing the complaint. The Democratic majority on the board during that 2014 ruling argued that this meets the law’s requirement for “mutual aid” because an individual harassment complaint can improve the workplace for others. The decision overturned a 10-year-old precedent set by the board during the tenure of President George W. Bush.

The board’s new general counsel Peter Robb (R) issued a memo Dec. 1 that signaled he might present an “alternative analysis” to the board in cases of sexual harassment where “only one employee had an immediate stake in the outcome.” The GC listed that particular issue first in a long list of cases flagged for potential revisiting.

The memo prompted Sens. Elizabeth Warren (D-Mass.) and Patty Murray (D-Wash.) to send Robb a letter asking him to explain why he might reconsider the 2014 precedent, along with other pointed questions about workplace sexual harassment generally.

The move comes in the wake of the public outing of movie mogul Harvey Weinstein’s misdeeds and the resulting awareness campaign. The general counsel’s response, whatever it may be, will likely be received and interpreted within the framework of the loaded and controversial national #MeToo conversation.

The NLRB declined a request for comment.

Stepping Into a ‘Hornet’s Nest’?

Robb and the board “will have to be careful about stepping into a hornet’s nest” in his answers to the senators and deciding whether to reconsider the issue, former NLRB chairman William Gould (D) told Bloomberg Law.

“The 2004 decision” that was overruled in 2014 “said that sexual harassment didn’t happen with great frequency,” Gould noted.One of the questions in the senators’ letter asks Robb: “Do you believe that workplace sexual harassment is a rare occurence?” The lawmakers also want to know if Robb will base any new approach to the issue on the belief that sexual harassment on the job is infrequent.

The new general counsel “is kind of caught between a rock and a hard place—either he’s got to answer the questions directly or risk associating himself with the approach of the 2004 board, which is now going to be viewed as a vestigial relic of a bygone era,” Gould said.

Obligations Regarding Response?

Both Gould and former NLRB special counsel Celine McNicholas said it was board policy during their terms to respond as accurately and completely as possible to any inquiry from lawmakers. McNicholas also held the post of director of congressional and public affairs and served during the Obama administration.

“I can say from experience that I recall no instances where we didn’t make an effort to comply fully” with a legislator’s request for information, McNicholas said. “My directive” from former board GC Richard Griffin (D) “was always to be absolutely responsive to our committee of oversight, whether coming from a member of the majority or minority party.”

Both noted that the general counsel serves as a party to litigation before the board members, and therefore has some rights not to disclose information that could end up in the hands of an opposing party or otherwise jeopardize his cases.

But the usual exception that agencies can use to avoid broad inquiries like this—a protection for “internal deliberative processes"—isn’t implicated by most of the senators’ questions, McNicholas said.

The letter is “from the committee with direct oversight over the agency,” she noted. “I think Robb will be on the hook to respond in as forthcoming a manner as he possibly can, and I can’t imagine the agency would take a different position.”

Dissent Suggested Existing Rule Can Backfire

Outgoing board chairman Philip Miscimarra, whose term ends Dec. 16, dissented from the 2014 decision that expanded federal labor law to cover harassment complaints in which only one employee has an immediate stake in the outcome.

The existing rule creates confusion for employers and can actually backfire in terms of protecting complainants because it hinders investigations, Miles & Stockbridge management-side attorney Daniel Altchek told Bloomberg Law.

One of the primary arguments in the dissenting opinions was that employees are protected from sexual harassment and other individual claims by different federal statutes, like those barring sex discrimination and hostile workplaces.

“The practical problem is that you can sort of butt up against” the existing precedent “when you’re trying to discharge your duty to conduct an internal investigation,” Altchek said.

“You can’t figure out whether you risk committing an unfair labor practice” because “making inquiries into an employee’s conversations with others who might have direct knowledge of the acts in question could be an unlawful interrogation or surveillance based on the current” precedent, he said.

“If this person went and told three of her friends right after Harvey Weinstein did whatever he did to her, even reporters talk to those people first when they’re reporting—that’s the same thing employers need to do when investigating.”

The argument is that “on net you’re decreasing protection” for employees, the attorney said.

Any arguments the board adopts on this issue, and Robb’s answers, are likely to be closely scrutinized.

The senators also asked why Robb issued the memo after a “mere nine workdays” in the GC post after testifying before the members of the Committee on Health, Education, Labor and Pensions that he isn’t entering the position with any particular ideological agenda, Gould noted.

“The problem with the memo is broader in scope in terms of the question of how did you acquire these views in nine days as a general proposition,” Gould said. “But it has particularly dramatic impact given the heightened concern with sexual harassment and how that issue has emerged.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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