Many of us have heard that the National Labor Relations Board (NLRB) has been taking a more aggressive stance in the last few years on private employer’s policies. In particular, they are looking for policies that contain “any language” that might have a possible chilling effect on an employee’s exercise of their right to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA).
Harassment policies often contain requirements that employees treat others (including customers) with respect and refrain from rude, disrespectful, offensive, intimidating, or threatening behavior. In the context of a business, we try and provide a safe place for all employees to work. However, the Board has interpreted these policies as broad and potentially restricting an employee’s Section 7 rights under the NLRA. These interpretations by the Board are often narrowed down to just a single statement within a broader harassment policy or the policy as a whole. For example, the NLRB has found the following policies unlawful:
- A rule prohibiting “making false, vicious, profane or malicious statements toward or concerning the hotel or any employee;”
- Verbal comments or physical gestures directed to others that exceed the bounds of fair criticism and behavior that is counter to promoting teamwork;
- Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork;
- Prohibiting “loud, abusive, or foul language;”
- Discipline for “the inability or unwillingness to work harmoniously with other employees;”
- Prohibiting negativity, any type of negative energy or attitudes;
- Engage in any activity which could harm the image or reputation of the company; and
- A rule prohibiting “negative conversations about employees or managers.”
Each of these types of statements have been interpreted by the NLRB as having a “chilling” effect on Section 7 rights.
When drafting your harassment policies, it is critical that you take into consideration the NLRB’s rulings and balance their requirements with the federal and state requirements. Take the time to have your policies reviewed or written by human resource experts or legal counsel.
The good news is the Equal Employment Opportunity Commission (EEOC) issued an 88-page report called “Select Task Force on the Study of Harassment in the Workplace” in which the EEOC appears to push back at the NLRB on workplace harassment policies (see page 38 of the full text report).
Stay tuned to next week’s blog post where we talk more about what the EEOC recommends in anti-harassment policies.