Written by Gerd W. Stabbert, Jr. & Kaylee Ivy, Arizona Attorney, Focus on Employment Law – January 2025
“So let us begin anew, remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.” 1”
- John F. Kennedy, Inaugural Address, Jan. 20, 1961
After a contentious election season, our country’s newly elected President will be inaugurated on January 20, 2025. Passions around the presidential election, and innumerable polarizing world events, greatly impact civility in the workplace. 2The election outcome, including House of Representative hearings 3and positions that may be taken by a new administration, directly affect what policies and practices employers can implement to tackle this issue under the National Labor Relations Board (“NLRB”) decisions in Stericycle Inc., 4 Lion Elastomers LLC II, 5 and their progeny.
Many employers implement policies with a desire to foster employee civility, prevent workplace disruption, and protect their business reputation and integrity. In doing so, however, these employers may unknowingly violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). 6Sensible policies of this kind encourage workplace respect and make for better work experiences, but employers must be vigilant in light of the recent administrative expansion of what is considered protected concerted activity under the Act. 7These policies may reflect positive directives like “We treat each other with dignity and respect,” 8“We commit ourselves to always treating everyone with whom we interact … with the ultimate level of respect,” 9or forbidding “[t]he making or publishing of malicious statements concerning any employee, the Company, or its products.”10
While many of these employer policies appear to be relatively neutral and proper mechanisms to cultivate a civil workplace, employers should look carefully to ensure they do not violate Section 8(a)(1) in light of recent decisions. Over the past two years, the NLRB and other federal agencies have driven a sea change that discourages broad civility policies. The floodgates opened with the 2023 Stericycle decision, where the NLRB sanctioned an employer for maintaining a civility policy because, ostensibly, it worked to “chill employees’ exercise of their Section 7 rights.”11 Earlier that year, Lion Elastomers LLC II signaled the later Stericycle rationale by making it harder to discipline employees for abusive or inappropriate workplace speech related to concerted or union activity.12 Many agency cases have since followed, further expanding the principles of Stericycle. 13
What are employers to do when their employees engage in disrespectful or downright inflammatory behavior?
Today, employees are doing much more than engaging in political discussions at work, as many delve into political activism. For example, employees have recently engaged in boycotts, walkouts and more.14 Historically, protected expression would be overtly tied to the workplace. But, over the past four years, the Biden administration expanded protections to any activity addressing political or social issues of the day. Employers must now toe the line between allowing employees to participate in political discourse, so as not to violate the administration’s broad scope of concerted protected activities, and preventing discourse that crosses the line into harassment. This typically occurs when there is an overlap of topics such as gender and race into areas of discussion, encroaching on the protections against discrimination, harassment or retaliation under Title VII.
These new agency rulings arguably foist a duty upon employers to be the arbiters of whether an employee’s acts cross the line, for example, from political speech to hate speech or discrimination. This problem is highlighted by cases such as Carter v. Southwest Airlines Co., 15 which saw religious discrimination claims arise when an employee was terminated for posting about an anti-abortion march on social media and sent to the union president. There, the employee won a high six-figure judgment after the court found Southwest Airlines terminated her based on her religious beliefs.16 And in Home Depot, USA,17 the NLRB held that an employee with “BLM,” an acronym for “Black Lives Matter,” on his dress code-required apron was engaged in protected concerted activity. 18
Under the existing constraints, employers must be aware that “an employer’s mere maintenance of a work rule may unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”19 They should set policies and engage employees “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” 20Employers must keep in mind these heightened safeguards for employees and the difficulty in reprimanding those who run afoul of company policies. And, beware, employers cannot avoid violation of the Act by generally including a savings clause in a policy or employee handbook. 21An employer simply cannot assume that a work policy interpretation found “reasonable” by management is also “reasonable” to employees.
However, a countercurrent to the presently progressive NLRB is afoot in the more conservative Supreme Court. From this, we see the duality of a “pro-labor” NLRB and an “anti-labor” Supreme Court causing further uncertainty for employers.
The most profound example of this is the recent June 2024 decision of Loper Bright Enterprises v. Raimondo, 22which overturned a 40-year precedent 23to diminish federal regulators’ authority. That case held courts cannot defer to an agency’s legal interpretation if a statute is ambiguous. Rather, such courts must exercise independent judgment. The practical effect of this decision removes statutory interpretive authority from agencies, including the NLRB, Department of Labor, and the Equal Employment Opportunity Commission.
Lower courts are likewise affecting this countervailing position. Recently, the Fifth Circuit vacated the NLRB’s decision in Lion Elastomers II LLC, where the NLRB overturned a Trump-era NLRB decision and revived a three-factor test to assess whether an employee’s speech or actions lose federal protection.24 The Fifth Circuit reversed on procedural grounds, finding the NLRB improperly used remand proceedings to overturn the old rule in violation of the employer’s due process rights. The court avoided ruling on the substance of the NLRB’s decision, leading to indecision over whether the Lion Elastomer II test is applicable. The NLRB, however, follows a doctrine of non-acquiescence and will not follow lower court rulings that break with its legal interpretations. The substantive holding of Lion Elastomer II, therefore, remains an open issue.
These administrative and judicial developments continue while the country’s executive branch is in transition. During the election cycle, former President Donald Trump and Vice President Kamala Harris vied for union votes, with each having taken on more pro-union and employee-friendly rhetoric. Most expected a Harris administration— which now won’t happen—to continue the Biden administration’s aggressive pro-employee approach, constraining employers. 25Likewise, commentators opined that a new Trump administration will continue its employer-friendly approach, despite pro-labor talking points and some union support. 26
Approaches like listening, respect, speaking from experience, and empathy may mitigate against perceived slights or “me vs. them” attitudes that could cross the line to incivility or worse.
With the new administration decided, to the disappointment of some employees and joy of others, the uncertainty facing employers remains. Existing cases will continue to work their way through the courts, where a return to protection for employers appears likely. Yet, employers should be aware of the still-existing increased protection for employees and weigh potential policy and discipline for employee conduct against those protections under the Act, as most recently interpreted. It would be wise for risk-averse employers to adhere to the more liberal standards of Stericycle until agency heads are re-avowed or new ones are appointed, and the Supreme Court weighs in on additional matters. For now, they can take the following proactive steps.
Look to resources for assistance in encouraging a civil dialogue between employees. 27 Common approaches include listening, respect, speaking from experience, and empathy. This type of approach may mitigate against perceived slights or “me vs. them” attitudes that could cross the line to incivility or worse. While encouraging this discourse can be helpful and cultivate civility in the workplace, employers also should be observant and ensure the discourse does not bleed into other areas of concern, i.e., when political speech becomes hate speech. Employers may even explore outside civility training and workshops available for management and employees.
These first steps must be bolstered with robust company policies. Prudent employers should conduct (yet another) review of their employee manuals. Typically, civility is not reflected in a single provision but is dynamic and may appear in policies addressing social media, communication, confidentiality, meetings and, of course, general conduct and ethics. Employers or their counsel should undertake a thorough review and edit of those provisions. This includes changing terms already flagged by the NLRB, such as requiring employees to “treat each other with dignity and respect.”
Lastly, employers should include practical training to monitor compliance with their policies. And they must exercise consistent and clear enforcement of those policies if they are violated, maintaining operable policies uniformly among the workforces. No cookie-cutter approach exists for handling civility in the workplace. Gone are the days where management can say to a dissatisfied worker, “You can go work for another company.” 28Instead, just as with other problematic employee conduct, when faced with heated political discourse, management must remain diligent in monitoring the never-ending ebb and flow of rules and decisions impacting employee rights.