Civility Training' May Lead to Liability Under National Labor Relations Act



Employers seeking to discourage workplace harassment by offering "civility training" may face liability under the National Labor Relations Act (NLRA). Such training still may be worth the risk, however, particularly if employer policies promoting civility are written with potential NLRA liability in mind.

"To some degree, employers are caught between a rock and a hard place," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York. "If they promote civility to minimize the potential for harassment, they may be sued by the GC [general counsel] to the NLRB [National Labor Relations Board], and lose before the NLRB."

He noted that the NLRB general counsel has said that the following rule, which some employers may want to implement as one way to promote civility, would in fact violate the NLRA: "Be respectful to the company, other employees, customers, partners and competitors." The general counsel has found that this rule would potentially interfere with employees' right to engage in protected concerted activity.

Using the same reasoning, the NLRB struck down an employer policy that told employees to "maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management."

In a June 20 report from the Equal Employment Opportunity Commission (EEOC) task force on workplace harassment, the EEOC stated that "promoting civility and respect in a workplace may be a means of preventing conduct from rising to the level of unlawful harassment." 

"That makes total sense to those of us in HR, but sadly not to the general counsel to the NLRB or some members of the NLRB," said Segal, who is a member of the EEOC task force but does not speak on its behalf.

Specific Examples

"It is hard to know with certainty what an employer can do without some risk, if an employer is at risk simply by asking employees to be respectful," Segal said.

Providing specific examples, such as "speak with colleagues without raising your voice at them," might help to minimize that risk, he noted. However, even this common sense rule might offend the NLRB, which could see it as interfering with robust discussion about the terms and conditions of employment.

Use examples that were approved by the NLRB general counsel in a March 18, 2015, memorandum, recommended Patricia Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio, and another member of the EEOC task force.

She said that acceptable policies as set forth in that memo include prohibitions against:

• Rudeness or unprofessional behavior toward a customer.
• Discourteous or disrespectful behavior to a customer.
  
• Threatening, intimidating, coercing or otherwise interfering with the job performance of fellow employees.
  

Wise noted, however, that the NLRB had found illegal a policy that required employees to "represent the employer in the community in a positive and professional manner in every opportunity." The board viewed this policy as potentially discouraging employees from engaging in protected concerted activity that might not be viewed positively by the employer. But "employers and critics of the decision viewed it as limiting the ability of employers to seek respect and workplace civility," Wise said.

This might be a situation where less is more, Segal said. An employer might publish a general expectation of all employees that has been approved by the NLRB, he said. This might include a policy stating that "each employee is expected to work in a cooperative manner with management/supervisors, co-workers, customers and vendors."

 Balance the Risks

Segal added, "Beyond that, where an employee engages in uncivil behavior, evaluate it at the time to see if it has protection. When making this evaluation, the employer may have to balance the legal risk under the NLRA of taking adverse action against the employee versus the EEO [equal employment opportunity] risk of allowing the uncivil—or blatantly discriminatory—behavior to go unchecked."

Civility policies are relevant in a broader context than just the narrow application of the law, Wise noted. "Social science increasingly demonstrates that a respectful and civil work environment contributes to improved morale, increased productivity and job satisfaction, and decreased turnover," she said.