Labor Law Update by Richard Markuson, Lobbyist, CAPHCC

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Labor Law Update

Sexual harassment claims now trigger NLRA considerations for all employers

 If you are a regular reader of this column, you know that the National Labor Relations Board (NLRB) is becoming more of an activist body. The NLRB continued its trend in Fresh & Easy Neighborhood Market, Inc. where it held an employee was engaged in “concerted activity” for the purpose of “mutual aid and protection” when she solicited statements from fellow employees to support her sexual harassment claim against another employee.

Does this affect you even if your workplace is non-union? Yes!

The National Labor Relations Act (NLRA) prohibits ALL employers from engaging in any actions that would chill employees’ rights to engage in “concerted activity,” which is defined by two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.

The case raises concerns for all employers. The NLRB first found the employee was engaged in “concerted activity” because she sought the assistance of fellow employees. Even if she was acting with selfish intentions or if the coworkers disagreed with her complaint, her request, on its own, established concerted activity.

The NLRB next found that her concerted activity was for the “purpose of mutual aid and protection” even though it was a personal complaint. Applying the maxim that “an injury to one is an injury to all,” the NLRB held that an employee seeking the support of her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid and protection of other employees.

This decision applies whether the employee seeks to raise the complaint directly to the employer, or to an outside entity. The decision applies even though the coworkers only participated in Ms. Elias’ complaint to stop her from annoying them about it.

How did the employer escape any penalty from the NLRB when it instructed the employee not to obtain any additional statements from her coworkers in connection with the complaint? Because Ms. Elias allegedly altered the statements of the coworkers. The NLRB found that the employer’s “narrowly tailored” instruction was a legitimate business justification to safeguard the integrity of an impartial and thorough investigation. In a footnote, however, the NLRB essentially warned that a blanket prohibition of discussing ongoing investigations of employee misconduct would violate Section 8(a)(1) of the NLRA.

What should an employer do?

The first step is to check your policy manuals to make sure the language complies with the “narrowly tailored” directive. Next, make sure that those responsible for investigating complaints are aware of the decision.