The National Labor Relations Board (NLRB) has confirmed that discussions about racism in the workplace are protected under Section 7 of the National Labor Relations Act (NLRA). This decision has significant implications for employers who may face legal risks if they retaliate against employees for engaging in such discussions.
Overview of the NLRB’s view on workplace discussions about racism
The NLRB has long recognized that employees have the right to engage in “concerted activities” for their mutual aid and protection. This includes discussions about workplace conditions, wages, and other terms and conditions of employment. Recently, the agency has expanded its view of what constitutes protected concerted activity to include discussions about societal issues, such as racism and discrimination.
Confirmation of protection for workplace discussions on racism under Section 7 of the NLRA
In a recent memo, the NLRB Office of the General Counsel confirmed that workplace discussions about racism fall under the umbrella of protected concerted activity under Section 7 of the NLRA. This means that employers cannot retaliate against employees for engaging in such discussions, even if those employees are not part of a union.
Retaliation against employees who engage in workplace discussions on racism
The NLRB’s memo makes it clear that employers who retaliate against employees for engaging in workplace discussions on racism risk facing legal action. This includes actions such as termination, demotion, or any other adverse employment action.
Violations of Section 8(a)(1) due to classroom discussions on racism
The memo also cites a recent case in which a medical school violated Section 8(a)(1) of the NLRA by retaliating against a physician who led a classroom discussion on racism in medicine. The NLRB found that the discussion was inherently concerted and for mutual aid or protection; therefore, the retaliation constituted an unfair labor practice.
Extension of protection for workplace discussions on racism
The memo reinforces the NLRB’s view that discussions about racism in the workplace are a matter of vital importance to employees and, therefore, fall under the umbrella of protected concerted activity. This means that employers cannot take adverse employment actions against employees who engage in such discussions.
Joint initiative to raise awareness about worker retaliation issues
The memo is part of a joint initiative between the NLRB, the US Department of Labor, and the Equal Employment Opportunity Commission (EEOC) to raise awareness about retaliation issues when workers exercise their protected labor rights.
The NLRB’s Expansive View on Protected Concerted Activity Under the Biden Administration
The Biden administration has made it clear that they support workers’ rights to engage in protected concerted activity. The NLRB’s memo is in line with this policy, and employers should expect the agency to take an expansive view of what constitutes protected concerted activity.
Analyzing protected concerted activity in workplace discussions on racism
Employers who want to avoid enforcement action should analyze the circumstances of the situation at hand to determine if protected concerted activity is implicated under the NLRA. This may involve reviewing the employees’ speech, the context of the conversation, and the motives of the employer in taking any adverse action.
Steps for employers to avoid legal risks and handle workplace discussions on racism effectively
To avoid legal risks, employers should train their human resources personnel and supervisors to recognize protected concerted activity. They should also establish a non-retaliatory action plan to de-escalate and address underlying issues. Additionally, it is advisable to work closely with labor counsel when responding to workplace discussions involving racism and other societal issues.
The NLRB’s memo confirms that discussions about racism in the workplace are protected under Section 7 of the NLRA. Employers who retaliate against employees for engaging in such discussions risk facing legal action. To avoid these risks, employers should take proactive steps to recognize and address protected concerted activity in workplace discussions about racism.
