Workplace Civility Rules Get Boost From Labor Board Decision

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By Jacquie Lee

The path for the National Labor Relations Board and the Equal Employment Opportunity Commission to collaborate on workplace civility rules is clearer thanks to a new NLRB decision, management-side lawyers told Bloomberg Law.

The board Dec. 14 overturned its 2004 decision in Lutheran Heritage Village-Livonia. That ruling had created some confusion about bad behavior on the job and whether such acts are illegal under discrimination laws or protected activity under labor laws.

For example, Cooper Tire faced a lawsuit after firing a worker for using racist language on a picket line—a hard stance against discriminatory language that the EEOC would generally applaud. But the company was recently forced by the NLRB and an appeals court to rehire the man because the incident was related to union activity.

In the new decision, the Boeing Company prevailed in a dispute involving a “no-camera” rule that banned workers from using devices to take photos or videos on job sites without permission.

The board said general civility policies requiring workplace harmony are now acceptable for employers to enforce. Those policies “would have little if any adverse impact” on workers’ rights to engage in activity protected under the National Labor Relations Act, the board ruled.

The decision maps out a new test to determine if handbook rules impede a worker’s rights. That test focuses on the rules’ justifications and potential impact.

Management-side lawyers think that makes it easier for the EEOC and NLRB to collaborate on workplace guidelines. But it’s unclear how overturning Lutheran Heritage will affect the workplace rules the two agencies create or whether the two agencies will follow through on collaboration at all.

EEOC Commissioner Chai Feldblum (D) couldn’t comment yet on the NLRB’s decision and how it will affect workplace civility rules going forward, but she said collaboration is still necessary.

“It is important for the EEOC and NLRB to work together in a collaborative manner to provide clarity to employers who wish to create respectful workplaces,” she told Bloomberg Law. “I continue to hope that we can do so.”

Officials from the NLRB declined to comment on workplace civility issues and its collaboration with the EEOC.

Civility Rules Can Still Be Unlawful

The NLRB’s new decision still leaves plenty of room for potential discrimination, an employee-side lawyer told Bloomberg Law, and it won’t necessarily lead to easier collaboration between the two agencies.

The Boeing decision only addresses which workplace rules can lawfully be maintained by an employer without violating the NLRA, Steve Ellis, an attorney at Ellis, Boxer & Blake in Springfield, Vt., said. It does not specifically address anti-discrimination laws, he said. A seemingly neutral civility policy can still be enforced in a way that’s discriminatory.

“It’s a completely different question whether certain policies can have the effect of discriminating against protected groups, which would be in the province of EEOC,” he said.

If the EEOC and NLRB collaborate “that’s not going to be because of the Boeing decision.”

Risk of ‘Compromise’

Of course, some don’t see any policy collaboration between agencies as necessary.

“Attempting to reach some sort of commonality of enforcement across these different statutes and different agencies creates a potential risk of compromising what Congress saw when they created the laws,” John Raudabaugh, an attorney for the National Right to Work Legal Defense and Education Foundation, told Bloomberg Law. Raudabaugh was an NLRB member from 1990-93 and currently teaches at the Ave Maria School of Law.

An action that violates the NLRA doesn’t necessarily violate Title VII unless there’s some “hyper-commonality"—like all those who were punished were all pro-union advocates and also a particular race or sex, Raudabaugh said. That’s not very common. Congress ultimately needs to be the agency to draw a line in the metaphoric enforcement sand, he said.

Potential Hurdles

Differences between how the NLRB and EEOC enforce their rules also create a hurdle for any agency collaboration, said Mark Neuberger, a management-side lawyer in Foley & Lardner LLP’s Miami office.

The NLRB tends to steer policy through judicial decisions, while the EEOC creates rules and guidelines, Neuberger said.

“It’s a different approach to guidance, so I think that’s a hurdle that they’re going to have to overcome,” he said.

In the area of anti-harassment, the NLRB could weigh in on how the EEOC’s already established anti-harassment guidelines may impede a worker’s rights and give employers a road map to create policies that satisfy both anti-harassment guidelines and the NLRA.

Collaboration isn’t impossible, but Neuberger isn’t convinced it will happen, either.

“If the agencies can get together and work together on that then God bless ‘em, but I’m just skeptical.”

To contact the reporter on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com

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

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