Last week, a team of Baker McKenzie partners (Andy Boling, Doug Darch, Bill Dugan and Miriam Petrillo) led a lively roundtable in Deerfield, Illinois on the topic of civility in the workplace.
Attorneys from the EEOC (Greg Gochanour, Regional Attorney for Chicago Office) and the NLRB (Paul Hitterman, Regional Attorney for Region 13 of the NLRB) joined us in leading the discussion. Topics included disciplining employees for uncivil workplace behavior, the enforceability of confidentiality restrictions on witnesses during internal investigations and the NLRB’s newly issued test for reviewing employee work rules.
Here, we share a “top 10” list to highlight the principal takeaways from the program.
- Impact of “Me Too” on the EEOC. The EEOC has not been sidetracked by “Me Too” claims, although they have seen a slight uptick in gender discrimination filings. The Chicago office is committed to addressing a broad array of claims in agency initiated litigation.
- Offer engaging employee training opportunities. While live training is optimal, electronic discrimination / harassment training is a viable option provided it includes an interactivity function and opportunity for questions.
- Consider EEOC conciliation. Employers are finding that conciliation is now more of a bilateral process in the Chicago office and presents a meaningful opportunity to resolve claims.
- Maintain a respectful workplace (US). Employee incivility is tolerated to a remarkable extent under US law. Disciplining an employee for violating a work rule requiring civility during otherwise protected concerted activities may be a violation of the NLRA.
- Maintain a respectful workplace (Global). As a general rule, employers can demand respectful behavior and language in the rest of the world. Indeed, abusive language directed against supervisors, whether in person or via social media, can support a termination for cause in many countries.
- Adopt handbook policies that are legal and enforceable. The NLRB’s new test announced in Boeing Company for evaluating the legality of employee handbook rules has changed to balancing interference the rule might have with employees’ section 7 rights against the employer’s business interest in maintaining the rule.
- Employee compensation. Rules prohibiting the discussion of employee’s compensation remain illegal under the NLRA even after the change in the analysis of work rules. State laws addressing this issue are probably preempted by the NLRA.
- Independent contractors. The NLRB is currently considering whether the improper designation of an employee as an independent contractor in and of itself violates the National Labor Relations Act (NLRA). Velox Express, Inc.
- Confidentiality work rule. Directing or even requesting employees maintain confidentiality during an internal investigation can be problematic under Section 7 of the NLRA. Disciplining an employee who is a neutral witness for discussing an internal and ongoing discrimination complaint investigation may violate Title VII and the NLRA.
- Ensure written policies are NLRA compliant. A company violates the NLRA if its written policies restrict protected activity, even if the company never enforces those policies in practice.
Please contact your Baker McKenzie lawyer for more details.