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EEOC Expands Its Approach to Harassment Policies: Mirrors Recent NLRB Activity

By: J. Bruce Cross

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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One of the most significant issues affecting businesses, including those in the hospitality industry, in 2012 has been the National Labor Relations Board (NLRB) and its General Counsel’s expansive efforts to find violations in various non-unionized company policies.  In particular, the NLRB has focused on social media, confidentiality, and other third-party communication policies. The NLRB contends these policies prevent an employee from being able to publicize information to the world via the internet and other means in violation of Section 7 of the National Labor Relations Act (NLRA).  Consequently, many NLRB charges have been filed against various businesses this year by employees attempting to utilize the agency to find violations of the NLRA through these alleged “overly broad” policies.

In one extreme case, the NLRB’s Phoenix Regional office issued a complaint to an employer-hotel based upon its “overly broad and discriminatory” “at-will” statement contained in the company’s handbook acknowledgment form.  The alleged offending language stated that:

“I understand my employment is ‘at will.’ This means I am free to separate my employment at any time, for any reason, and [Employer] has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either [Employer’s] executive vice-president/chief operating officer or [Employer’s] president.”

Citing this language, the NLRB found that it restricted an employee’s ability to participate in union-organizing activities, which would constitute a violation of Section 7 rights under the NLRA.  That case settled prior to the hearing set in May, yet it serves as a good example of the extent to which the NLRB is willing to go to find a policy violation.

Also, in Banner Health, the NLRB’s General Counsel challenged a company’s practice of asking employees not to discuss their interviews with others while the matter was under investigation.  The NLRB found that this practice violated the employees’ Section 7 rights under the NLRA.  The NLRB reached its conclusion despite the fact that no employee received or was threatened with any type of discipline for talking about the investigation.  Accordingly, at least under NLRB precedent, any time an employer asks employees to not discuss a matter being internally investigated, it will likely violate their rights under the NLRA.

The NLRB’s focus on corporate handbook policies throughout this year is extremely disturbing due to the fact that many employers’ policies and practices would likely be in violation of the NLRB’s newly-expanded view of Section 7 rights.  Now, it appears that other regulatory agencies like what the NLRB has been doing, and are taking a page out of the NLRB’s 2012 playbook. 

For example, in today’s workplace, a manager or supervisor that receives a harassment complaint (sexual or otherwise) from an employee will generally, per company policy, begin an investigation into the claim as soon as possible.  During the course of an investigation, employees who are interviewed by management are often asked to not discuss the matter with co-workers or others.  The purpose of this limited confidentiality is to protect the integrity of the investigation so that the merit of an employee’s harassment complaint may be accurately determined. Many harassment policies (which are effectively mandatory) include language to that effect. Recently, the Equal Employment Opportunity Commission (EEOC), specifically, has begun informing employers that these types of harassment policies may be overly broad, and therefore in violation of Title VII, should the policies restrict an employee’s ability to discuss matters under investigation. 

As a result of the positions recently espoused by the NLRB and EEOC, all employers should begin reviewing their policies and practices for anything that limits their employees’ ability to discuss conditions of employment or any matters under investigation.  These espoused positions have generally not been considered beyond the agency level.  Thus, the validity of the agency positions remains uncertain at the court level.  However, if the EEOC continues along the path similar to the NLRB, many corporate policies that include this type of language may result in complaints filed by the EEOC contending that those policies are a Title VII violation. 

If you have any questions about this or other issues relating to corporate handbook policies, contact an attorney with Cross, Gunter, Witherspoon & Galchus, P.C. or your local ELA attorney.