NLRB Issues Guidance on Protections for Discussing Racism in the Workplace
All Employers with Employees Subject to the NRLA
February 27, 2023
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The National Labor Relations Board (NLRB) recently issued an Advice Memorandum addressing protected workplace discussions around racism. In Kaiser Permanente Bernard J. Tyson School of Medicine, a school professor claimed she was essentially terminated for a classroom discussion about racism at the school and in the medical field, and for tweeting about her own story to encourage others to act.
The National Labor Relations Act (NLRA) protects employees when engaging in concerted activities for their mutual aid or protection. This situation was in the context of the early stages of the COVID-19 pandemic in conjunction with the mass protests against the killing of Black people and people of color by police. The employer instructed professors to discuss with students about legacies of power structures and institutionalized racism that result in gender bias and race bias in medicine. Following that instruction, the professor engaged in discussion with the students and involved another employee who was present. Here, the NLRB said that the classroom conversation was inherently concerted because it discussed issues of race faced by Black faculty and students as well as systemic racism in medicine, and that conversation was for mutual aid or protection.
Additionally, the NLRB said that the employee’s tweets were protected concerted activity on their own because they discussed terms and conditions of employment regarding racial disparities in medicine faced by medical professionals, sought the assistance of others to improve working conditions in medicine, and encouraged others to fight for racial equality and justice in the workplace. The tweets were also a logical outgrowth of the discussion from the classroom.
While the NLRA protections are typically discussed in situations involving pay or working conditions, this Advice Memorandum highlights that working conditions include addressing racism in the workplace. Employers should note that these protections are in addition to federal Title VII protections for opposing or raising concerns about racism in the workplace, as well as similar state and local rules.
- Have appropriate personnel trained on NLRA protections and employee discipline.
- Review discipline for racial discussions, including social media posts, with legal counsel.
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