TOP TIP: The National Labor Relations Act Protects (Union and Non-Union) Workplace Discussions of Racism
In a recently issued Advice Memorandum, the National Labor Relations Board’s (NLRB) Office of the General Counsel (OGC) offered guidance to employers – both union and non-union – regarding the protection of workplace discussions of racism. NLRB Advice Memoranda contain the recommendations of the OGC to Regional Offices on novel or complex issues. These memos may be publicly released years after issuance, but often contain helpful guidance for employers.
Protected Concerted Activity Under the Act. Regardless of an employer’s union or non-union status, Section 7 of the National Labor Relations Act protects employees’ rights to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity” or PCA), while Section 8 makes it unlawful for an employer to interfere with those rights. An employee’s lone statements may be PCA where they are addressed to coworkers and seek to initiate, induce or prepare for group action – even if the coworkers do not agree or join. They may also be PCA where they communicate a complaint to management on behalf of a group of coworkers. Moreover, communications may be protected even where there is no express call for group action if they involve “inherently concerted discussions about vital categories of workplace life.”
Background of the Case. In Kaiser Permanente Bernard J. Tyson School of Medicine, a medical school professor alleged that her teaching privileges were suspended following a classroom discussion with students and another employee of racism against Black faculty and students as well as systemic racism in medicine, and that she was subsequently terminated after tweeting about the incident and asking others to share her story and use their voices to “augment the marginalized” and “end racism in medicine.”
The OGC’s Memo. In its 2021 memo, the OGC found that the classroom discussion about racism, which, critically, involved another employee and not just students, “was inherently concerted and was for mutual aid or protection.” It further found that the professor’s individual tweets, which it designated a “logical outgrowth” of the classroom discussion, were also PCA because she “discussed terms and conditions of employment regarding racial disparities in medicine faced by medical professionals, sought the assistance of others to improve working conditions in medicine, and encouraged others to fight for racial equality and justice in the workplace.” Notably, the OGC asserted that it was immaterial that none of the professor’s co-workers engaged with her tweet because the Act protects the concerted activity of “any employee, and shall not be limited to the employees of a particular employer.”
The Act does not protect individual gripes. But even though the professor discussed her own suspension, she did so in the context of calling for future group action against racism. Thus, according to the OGC, the tweets were more than mere griping and constituted PCA.
Takeaways for Employers. It is well-understood by most employers that Title VII prohibits discrimination based on race, among other characteristics, and protects employees who opposed such discrimination – which can involve raising concerns about racism in the workplace. What this memo makes clear is that the National Labor Relations Act will also protect employees who discuss racism in the workplace with their co-workers, and may also protect social media activity that can be deemed to call for group action – even among those beyond the individual workplace.
