by Phil Wilson

The Return of Workplace Civility?

Do you get the feeling that in 2020 everything is dialed up to 11? I sure do. Our country (and the world) face high-stakes issues. Things are emotional. And every conversation seems to have more at stake.

There has never been a bigger need for companies (at least the ones fortunate enough to continue to operate) to foster an environment where teammates can have a civil conversation at work. The NLRB took a big step forward by rationalizing its approach to workplace civility cases this week in its General Motors decision.

The key issue at stake in General Motors is when (if ever) an employer can lawfully enforce its workplace civility rules. In this particular case a union official repeatedly verbally abused, including threats, members of management. These tirades occurred at work in front of others.

The Board also looked at other situations that have come up over the last several years: racial slurs shouted on a picket line, swearing out a company owner during a meeting, or vulgar social media posts about a manager. Over the last decade the decisions in this area became harder and harder to understand. If there was any concerted activity around the time of the abusive comments the Board would find the abuse lawful. At the same time, almost any complaint was found to be concerted activity. All three of the fact scenarios listed above (yes, including racist slurs) got protection.

These cases rest on the idea that there is no way to analytically separate the abusive language from the concerted activity, and that the protections of the Act trump any attempt by the employer to enforce civility rules. The Board in General Motors took down both pillars of this argument.

First, they explain that it’s absurd to say that you can’t separate verbal abuse from concerted activity. It is entirely possible that an employee could be engaged in protected activity and lose that protection by violating a neutrally enforced civility rule. Even the cases overturned by General Motors do this.

The main difference between General Motors and the confusing batch of cases it overturns is the way they focused on the context of each event. These results-oriented decisions gave each situation its own test focused only on whether the employee’s actions were egregious enough to lose protection of the Act. Predictably, this led to a slippery slope of more and more outrageous conduct being protected.

The situation got so bad that it put employers in the awkward position of choosing to violate Equal Employment Opportunity statutes in order to avoid liability under the National Labor Relations Act. The idea that you can’t discipline an employee for making racist comments just because they happened to make them on a picket line is disastrously bad policy. General Motors fixes that.

The General Motors decision returns these cases to the long-established and easily understandable Wright Line test. Instead of focusing on when an action becomes so abusive that it loses protection of the Act, it instead focuses on whether the employer’s action was motivated by union animus. These cases use a burden-shifting model that is common in EEO cases. First the General Counsel must establish that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, proven with evidence that establishes a causal relationship between the discipline and the Section 7 activity. If the General Counsel has made his initial case, the burden of persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity.

The Wright Line framework achieves the clear purposes of protecting concerted activity while at the same time preserving the right of an employer to provide a civil and inclusive place to work. In 2020 this balance has never been more important. As former Member Johnson stated in his Pier Sixty dissent:

The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances. Reflecting this underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free of unlawful harassment. Given all this, employers are entitled to expect that employees will coexist, treating each other with some minimum level of common decency.

“Treating each other with some minimum level of common decency,” is not a very high bar. It shouldn’t be a legal minefield for employers to provide a workplace like that. That is more true today than it’s ever been. The General Motors decision finally gives clarity to employers and encourages them to do just that.