NLRB GC Issues Memo on Harmonizing NLRA and EEO Laws

Quick Hits

• The NLRB GC issued a memorandum addressing potential employer concerns about complying with EEO laws prohibiting discrimination and harassment in the workplace and the NLRA’s protections for employees engaging in concerted activity.
• The memorandum emphasizes the GC’s view that the NLRA and EEO laws are complementary and “both can and should be given full effect.”
• The memorandum was issued just days before a changeover in the presidential administration, which likely will affect the general counsel of the NLRB.

On January 16, 2025, the GC issued Memorandum GC 25-04, titled, “Harmonization of the NRLA and EEO Laws.” The memo is focused on potential conflicts between employers’ compliance with the NLRA and EEO laws in the context of (1) employer civility rules, (2) investigation confidentiality, and (3) employees’ use of offensive language and conduct.

While EEO laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), seek to protect workers from discrimination and harassment in the workplace, the NLRA protects workers’ rights to engage in concerted activity, which can, in some circumstances and subject to certain restrictions, include employee use of hostile language or conduct.

The memo emphasizes the GC’s view that the NLRA and EEO laws provide legal frameworks that are “complementary,” meant to “work in tandem,” and that “both can and should be given full effect.”

Workplace Civility Rules

The memo addresses the potential risk that enforcement of workplace “civility rules,” which seek to regulate language and conduct beyond what is covered by an employer anti-harassment policy, may be found to chill employees from exercising their NLRA rights. The memo notes that NLRA-protected activity “may be adversarial in nature” and critical of the employer, whether directed at “fellow employees, the public, or government agencies like the NLRB.”

Still, the memo states that employers “can avoid implicating potential EEO and NLRA concerns by maintaining and consistently enforcing an EEO anti-harassment policy or rule that specifically prohibits harassment based on EEO-protected characteristics.” Further, “workplace rules that are narrowly tailored, focused, and precise are most likely” to comply with both the NLRA and EEO laws, such as “a rule that specifically prohibits harassment based on EEO-protected characteristics would not raise any concerns under the NLRA,” the memo states. Stated differently, workplace civility rules and policies that focus on unlawful harassment and discrimination based on EEO-protected classifications should not violate the NLRA.

Investigative Confidentiality

Many employers have long had rules or practices concerning confidentiality in the context of workplace investigations. Such rules serve to encourage individuals to come forward with complaints or to participate in investigations as fact witnesses without fear of retaliation or internal conflict with coworkers. Nevertheless, such rules have been in the crosshairs of the NLRB for several years. The memo states that overbroad “investigative-confidentiality rules” may be unlawful if the rules make employees “think twice” before exercising their rights to communicate or “dissuade[s] employees from reporting unlawful conduct to the NLRB.” In particular, the memo states that “rules that preclude any communication about the allegations and investigation or that are applicable to any employee—victim, witness or third party—could be problematic for a number of reasons.” (Emphasis in the original.)

According to the memo, employers can design investigations to satisfy the NLRA and EEO laws without “imposing broad-based confidentiality rules on employees” by “maintaining strong anti-retaliation policies and ensuring that employees are aware of them.” Instead of demanding confidentiality, “an employer can advise interviewees of the specifics of its anti-retaliation policy and make clear the steps that it will take should it determine that there has been retaliation, and thus a violation of that policy,” the memo states.

The memo further states that employers should “consider the context of the particular investigation before requesting or requiring confidentiality.” If confidentiality is “truly needed,” the memo advises employers to “clearly identify the scope of the confidentiality requirement to interviewees, including the information and matters it covers and how long it lasts, so that employees do not misunderstand the breadth of information covered and the applicable length of time.”

Further, the GC also recognizes that the “employer itself” can keep information confidential by requiring confidentiality of supervisors and management, who are “not typically covered by the NLRA.” While these recommendations may not be practical in all situations, they provide useful guidance for human resources professionals as they conduct future investigations.

Offensive Language or Conduct

The memo recognized that employers may have concerns about balancing, on one hand, the NLRA liability risk from disciplining an employee for offensive language or conduct, and, on the other, EEO concerns from not taking disciplinary action.

The GC states that while protected speech and conduct connected with the exercise of Section 7 rights may be hostile in nature, including the use of “insults, obscenities, or other vulgar language or mannerisms,” the NLRA does not necessarily conflict with EEO protections.

First, conduct “not based on or motivated by a protected characteristic” likely does not implicate EEO laws, according to the memo. Second, for EEO laws to apply, the speech or conduct must be “sufficiently severe or pervasive” and “both objectively and subjectively offensive.”

At the same time, the memo emphasized that disciplining employees who exercise their NLRA rights may be unlawful, and the fact that an employee may have engaged in offensive language or conduct in exercising those rights “does not necessarily permit an employer to impose what would otherwise be unlawful discipline.”

However, language or conduct that does not violate EEO protections “may still weigh towards loss of NLRA protection when the nature of the conduct is assessed,” according to the memo. That assessment may look at whether an employee “persist[s] in using certain language or conduct after being advised not to do so pursuant to a lawful anti-discrimination or anti-harassment policy” and the impact on other employees, including whether the “language or conduct reasonably would negatively impact” other employees’ terms and conditions of employment or their exercise of NLRA rights based on their EEO-protected characteristics.

Ultimately, employers may need to evaluate employee offensive conduct and use of profanity on a case-by-case basis, balancing the risks of NLRA litigation with workplace culture concerns and EEO obligations.

Key Takeaways

The memorandum comes just days before President-elect Donald Trump takes office with the apparent goal of providing guidance regarding workplace rules on civility, confidentiality during investigations, and offensive language and conduct following the NLRB’s 2023 Stericycle, Inc. decision.

With the changeover in presidential administrations, it is quite likely that GC Memo 25-04 will be rescinded in the coming weeks. Still, NLRB regional directors will continue to apply the Stericycle case, and employers could face the risk of unfair labor practice (ULP) charges until (and unless) the new Trump Board overrules the Stericycle decision. As a result, the memo provides useful guidance for employers assessing ULP concerns and modifying their policies to mitigate legal risks.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion, Employment Law, and Traditional Labor Relations blogs.

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