Employers Dealing with Harassment Retaliation Claims Now Have to Deal with the NLRB

On Monday, the National Labor Relations Board (“NLRB”) puts its considerable weight behind protecting employees who try to garner support for their harassment claims.  In Fresh & Easy Neighborhood Market, Inc., the Board held that where an employee solicits statements from fellow employees to support a claim of harassment that is “concerted activity” protected by the National Labor Relations Act (“NLRA”).

If you are tempted to stop reading this because you do not have union employees, don’t.  The NLRA prohibits unionized and non-unionized employers from taking actions that would chill an employees right to engaged in “concerted activity.”  “Concerted activity” is defined as when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

This case is a bit concerning for employers.  The testimony in the case was that a derogatory cartoon had been drawn next to the complaining employee’s (Ms. Elias’) name on a whiteboard in the employee breakroom.  Ms. Elias then drew a picture of the offending cartoon and asked three co-workers to verify it was an accurate picture of the cartoon so that she could file a harassment complaint.  She then filed a complaint of harassment with her employer.

The concerning part for employers about the Board’s ruling is that it decided that Ms. Elias was engaged in concerted protected activity “for the purpose of mutual aid and protection” even though Ms. Elias herself testified that she did not intend to file a complaint on behalf of anyone other than herself.   Further, the three co-workers who verified the drawing testified that they did not wish to file complaints of harassment based on the drawing and actually felt forced by Ms. Ellis to sign the document.  It is thus difficult to understand how, based on these facts, Ms. Elias could be deemed to be bringing group complaints to the employer’s attention or otherwise engaged in concerted activity

The NLRB’s decision does not clarify this issue.  In fact, it noted that when Ms. Elias went to her co-workers to have them verify the drawing, she was only asking them to assist in her personal complaint.  Nonetheless, the NLRB has ruled and employers need to be aware of this issue before disciplining employees who solicit support for a harassment claim.

The good news is that the NLRB went on to hold that the employer did nothing wrong in asking Ms. Elias to stop trying to solicit statements from her co-workers while it investigated her complaint.  The Board held that the employer had a legitimate interest in conducting a fair and impartial investigation.

This may be a limited victory for employers as the Board noted that blanket statements to employees that they cannot discuss complaints of harassment may violate the Act. Employers should be aware of the interplay between state and federal anti-discrimination laws and the NLRA.

Source: Fox Rothschild