On March 30, 2021, the Office of General Counsel of the National Labor Relation Board (“NLRB” or “Board”) released an Obama-era Advice Memorandum, originally prepared in 2016, opining that racially charged comments were protected concerted activity.  Just one day later, on March 31, 2021, Acting General Counsel Peter Sung Ohr affirmed in his latest Memorandum (“March 31^st Memorandum”) his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act (“NLRA” or “Act”) beyond concerted activities relating to union activity and labor organizing, for example, by expanding the Board’s traditional view of protected concerted activity to protect employees’ political and social justice advocacy activities under Section 7.  These publications are a harbinger of the enforcement priorities of the General Counsel under the Biden administration.

The Established Section 7 Standard for Protected Concerted Activity

As background, Section 7 of the NLRA affords employees the right “to engage in [] concerted activities for the purpose of . . . mutual aid or protection.”  29 U.S.C. § 157.  Activity is held to be for “mutual aid or protection” (i.e., protected) if it is intended to improve conditions of employment, see Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978), and it is “concerted” if it is intended to initiate, induce, or prepare for group action, see Meyers Indus., Inc., 281 NLRB 882, 887 (1986).  It is a violation of Section 8(a)(1) of the Act to discharge or otherwise take adverse action against employees for engaging in protected concerted activity—whether they are unionized or not and regardless of whether the activities are intended to seek union representation.

In the context of employee speech, an employee’s use of offensive language may be so “offensive, vulgar, defamatory, or opprobrious” as to render otherwise connected protected activity unprotected.  See Dreis & Krump Mfg., 221 NLRB 309, 315 (1975), enfd, 544 F.2d 320 (7th Cir. 1976).  But the Board has taken a narrow view of when such speech loses the Act’s protections, and has found, for example, workers who made explicit threats—laced with sexual and racial slurs—while picketing were still protected by Section 7.  See, e.g., Detroit Newspaper Agency, 342 NLRB 223, 267-68 (2004) (striker still protected despite using despicable racial and sexual epithets).  (However, as we discussed here, the Board recently made it easier to discharge employees for using offensive speech.)

Acting General Counsel Ohr’s March 31^st Memorandum

Significantly, Acting General Counsel Ohr’s March 31^st Memorandum broadly construes the ambit of Section 7, and states an intent to apply it in non-unionized workplaces and to employees’ discussions on topics such as workplace health and safety and racial discrimination, and employees’ political and social justice advocacy activities.  The March 31^st Memorandum thus signals that the General Counsel—like the General Counsel under the Obama Board—will seek to expand Section 7’s contours, and not just in unionized workplaces.

Acting General Counsel Ohr distinguished decisions by the Trump-appointed NLRB majority that curtailed Section 7 rights and directed officers in the Board’s regional offices to effectuate the enlargement of Section 7’s scope by “vigorously” enforcing two Section 7 doctrines: (1) the right to engage in concerted activity for the purpose of mutual aid or protection, and (2) inherently concerted activity.

Acting General Counsel Ohr remarked that, “[g]oing forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act” and provided the following examples of activities that constitute mutual aid or protection:

• a hotel employee’s interview with a journalist about how earning the minimum wage affected her and employees like her, and how legislation to increase the minimum wage would affect them;

• a “solo” strike by a lone pizza-shop employee to attend a convention and demonstration where she and others advocated for a $15-per-hour minimum wage; and

• protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids.

Acting General Counsel Ohr ties together these scenarios and links them to Section 7 by explaining that they involve issues within the employer’s control, “like payment of wages and employers’ willingness to hire immigrants.” Based on this reasoning, employees’ interactions may be inherently concerted so long as the employees are engaging with each other to discuss or otherwise work toward improving their terms and conditions of employment, even if the interaction is a one-sided discussion involving only a speaker and listener.  He further clarified that group action is not a requirement for activity to be deemed concerted where an employee’s discussions of certain “vital” terms and conditions of employment are sufficient to render their interaction inherently concerted, even if other employees who are present during the conversation do not agree with the opinion or complaint or seek the same outcome.  Further, if an employee tells another employee about their thoughts on a political or social justice topic and that topic can be reasonably traced to workplace conditions, both employees have now potentially engaged in protected activity, regardless of whether the listening employee responds to or agrees with the comments made by the opining employee.  Arguably, almost any political or social justice topic may have a direct nexus to workplace conditions, and, moving forward, any conversation about such a topic may be considered protected concerted activity.

The Protection of Racially Charged Comments—Advice Memorandum

The Advice Memorandum, released on March 30, 2021, provides an example of this expanded view of protected Section 7 activities.  The Division of Advice (“Advice”) analyzed whether a nurse (“Charging Party”) was discharged by her employer for her “protected” Section 7 activity.  See SunBridge Healthcare LLC, Case 01-CA-156820, Advice Memorandum dated Jan. 20, 2016.  The Charging Party, who is Hispanic, worked as a certified nursing assistant.  The Charging Party believed that her employer treated Black employees more favorably than non-Black employees, and discussed this perceived unfair treatment with other employees who shared her concerns.

On one occasion, the Charging Party was unhappy that the Director of Nursing (“Director”) only approved a two-week vacation instead of the one-month vacation the Charging Party had requested.  After this conversation, the Charging Party proceeded to a patient’s room where she “said that perhaps the Director had denied her vacation because she wasn’t [B]lack.”  A nursing unit manager and two coworkers all claimed that they heard this comment.

Following this incident, one of her coworkers (“Coworker 1”) informed the Director that she overheard this comment and that earlier in the day, she had also heard the Charging Party say, “[T]hese freaking Africans, they lie about their parents being sick and they are granted four weeks off, and me I’m only asking to go for my wedding and I can’t get it.”  A few days later, the Director informed the Charging Party that someone had complained about her racially charged comments.  The Director, after conducting an investigation, gave the Charging Party a “written final warning” for “harassment of a coworker by making racial slurs.”

Two days later, the Charging Party was asked to work mandatory overtime, which she refused to do.  The Charging Party was suspended as a result.  During her suspension, Coworker 1 reported to the employer that after the Charging Party was issued the written warning for harassment, the Charging Party had refused to interact with Coworker 1 and was retaliating against her and intimidating her.  As a result, the employer discharged the Charging Party for “harassment and retaliation to a colleague.”

On these facts, Advice opined that the Charging Party’s termination was in violation of her Section 7 rights, and made three important findings, consistent with the tenets set forth in the Acting General Counsel’s March 31^st Memorandum.

First, Advice opined that the Charging Party’s comment concerning the reason her leave request was denied was protected concerted activity.  According to Advice, the comment was protected because complaints about racial discrimination are a matter of mutual concern for employees, and it was concerted despite concerning her personal leave request, because it was a continuation of earlier discussions amongst employees about race discrimination in the workplace.

Second, and more significantly, Advice opined that discussions about racial discrimination in the workplace are inherently concerted.  Advice explained that the Board has long held that discussions about wages and job security are inherently concerted even absent a showing that group action was contemplated, since they are “vital” terms and conditions of employment and the “grist on which concerted activity feeds.”

In other words, complaints about racial discrimination, even if they only concern the complainer and the complainer does not intend to induce group action, will per se be considered concerted under the rationale Advice described.  Under Advice’s reasoning, then, all complaints of racial discrimination in the workplace would be deemed concerted under Section 7.

Third, Advice found that the employer discharged the Charging Party for engaging in protected activity (i.e., her complaint concerning the denial of her time-off request).  Advice found that the temporal proximity between the Charging Party’s complaint and her discharge, along with the employer’s knowledge of the Charging Party’s other complaints of discrimination, raised an inference that she was discharged for protected concerted activity.  In doing so, Advice stated that the Charging Party’s invidious racial stereotyping equating Africans with “liars” “was not so egregious as to lose the protection of the Act.”  Stated differently, because the Charging Party’s statement that the employer found to violate its harassment policy was connected with protected concerted activity (i.e., complaints about preferential treatment for Black employees), it could not justify adverse action without violating Section 7.

Advice’s third conclusion is troubling for employers and employees.  Title VII of the Civil Rights Act of 1964 (“Title VII”) requires employers to prevent workplace harassment based on “race, color, religion, sex or national origin” and to investigate reports of such harassment and to take prompt and effective remedial action.  See 42 U.S.C. § 2000e-2(a); 29 C.F.R. § 1604.11(d).  Local laws in many states and cities have even stricter requirements regarding preventing and addressing workplace harassment.  Employers that do not nip burgeoning harassment in the bud risk liability, including punitive damages.  See Faragher v. City of Boca Raton, 524 U.S. 775, 800 (1998).  They also risk incurring bad publicity that may tarnish their public image, damage business relationships, reduce profitability, and hinder their ability to attract talent.

Advice’s framework for evaluating and responding to harassing language in the workplace places employers in a catch-22 situation: discipline the employee for “not so egregious” harassment and risk violating the NLRA if the employee is otherwise engaging in protected activity, or turn a blind eye to the harassing behavior and be vulnerable to costly, and sometimes very public, harassment claims under Title VII.

This framework, coupled with the Acting General Counsel’s pledge to “vigorously” enforce Section 7 rights, may also portend an effort to resurrect Obama-era precedent that would further expand workers’ Section 7 rights at the expense of employers’ obligations under Title VII.  For example, in Banner Estrella Medical Center, 363 NLRB 1108 (2015), the Obama Board held that “an employer may restrict [discussions of discipline or ongoing disciplinary investigations] only where the employer shows that it has a legitimate and substantial business justification that outweighs employees’ Section 7 rights” to discuss such investigations.  Thus, an employer cannot rely on a blanket confidentiality policy to protect its workplace investigations but must conduct a case-by-case analysis to determine whether a specific investigation warrants confidentiality.  (As we discussed here, the Trump Board overruled Banner Estrella.)

This framework proved problematic for employers seeking to comply with their obligations under Title VII and similar laws.  The Equal Employment Opportunity Commission (“EEOC”) instructs employers that their “anti-harassment policy and complaint procedure should contain, at a minimum . . . [a]ssurance that the employer will protect the confidentiality of harassment complaints to the extent possible[.]”  The EEOC’s guidance is not just good investigatory practice; it tracks Supreme Court cases, which provide employers a defense to a harassment claim if, among other proactive matters, the employer implemented a reporting mechanism, prompt investigation, and adequate remedial measures to prevent future conduct.  See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).  Should the Board return to the Banner Estrella framework, this would thus place employers in another catch-22 situation: follow the EEOC’s guidance and risk violating workers’ Section 7 rights, or follow Banner Estrella and risk harassment liability.

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In his March 31^st Memorandum, Acting General Counsel Ohr issued this warning to employers: “Going forward, under the framework of the law as presently articulated, cases involving retaliation against concerted employee conduct will be vigorously pursued, where these and other factors exist to tie workers’ protests to their interest as employees.”  Employers must heed this warning and tread carefully.  Before taking adverse action to remedy harassment or in regard to an employee’s political and social justice advocacy activities at or outside of the workplace, even if unrelated to an employees’ union and labor organizing activities, employers need to analyze whether the harassing speech or advocacy activities are now protected conduct under the General Counsel’s broadened interpretation of Section 7 rights.