NLRB General Counsel Issues Memo on Workplace Law Alignment

On Jan. 16, 2025, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum detailing how the National Labor Relations Act (NLRA) and federal equal employment opportunity (EEO) laws can align in workplaces. This memorandum follows initial reports from nearly a year ago about a potential joint memorandum between the general counsel and the U.S. Equal Employment Opportunity Commission (EEOC). The joint memorandum was expected to address employer concerns about harmonizing the EEOC’s latest Guidance on Harassment in the Workplace (2024) with the NLRB’s decisions in Stericycle Inc. (2023) and Lion Elastomers LLC II (2023).

A central question for many organizations – including SHRM in its 2023 public comment – was how to handle employee actions that could reasonably fall under the NLRA’s protections for “protected concerted activity” under Section 7 and employer obligations under Title VII of the Civil Rights Act of 1964 (Title VII). In her memorandum, which was not co-signed by anyone from the EEOC, Abruzzo said that “such harmonization is possible because neither body of law sets forth absolutes in areas of potential overlap,” and that the NLRA and EEO laws “leave space for the other to operate.” 

To rectify this issue, SHRM will continue to advocate for public hearings so all stakeholders may be heard, followed by the issuance of joint guidance. Absent further clarity from the EEOC, when faced with problematic employee conduct that arguably falls within the reach of Section 7 of the NLRA, employers will remain in the precarious position of having to reconcile the possibility of being found liable under Title VII for failing to address and remedy outrageous language or conduct in the workplace against the possibility of incurring liability for an unfair labor practice charge under the NLRA.