Last week, the National Labor Relations Board made headlines when it concluded that nondisparagement and confidentiality provisions in severance agreements that businesses give to rank-and-file employees are unlawful.
Yesterday, the Board made headlines again by releasing this Advice Memo in which it concluded that employees who engage in group discussions about issues of race that black employees face at work, including perceived implicit bias work, are protected from retaliation by employers.
In this particular instance, a faculty member at a medical school wore a t-shirt that said, “I can’t breathe,” and facilitated a discussion on how racial bias causes poor health outcomes and the history of how the medical field has perpetrated race and gender discrimination. But, part of the discussion concerned an earlier email from the Dean of the school that many staff had considered ” triggering, tone deaf, and showed the Dean’s implicit racial bias.”
The National Labor Relations Act protects employee conduct that is both “concerted” and “for the purpose of . . . mutual aid or protection.” Think: discussions about working conditions.
Historically, the Board has held that an employee’s discussions with her coworkers about higher wages, for example, constituted concerted activity even though the discussions did not contemplate group action. In reaching that decision, the Board observed that the object of inducing group action need not be expressed but can instead be implied from the subject matter of discussion.
So it should come as no surprise that the Board has also deemed discussions of racism among the subjects of workplace discussions that are inherently concerted activity — a logical and necessary extension of the inherently concerted doctrine.
In this particular instance, the faculty member lectured on racial bias to her students and another coworker who attended the class. When a fellow employee is present for a discussion about terms and conditions of employment, the communications are inherently concerted. Further, because working to end systemic racism, including its impact at work, benefits all employees, the discussion was for mutual aid or protection. Accordingly, the Board’s Associate Counsel, who drafted the advice memo, did not hesitate to conclude that group discussions about race at work are protected concerted activity.
Remember that if you operate a private-sector business, it’s more likely than not that it falls within the scope of the National Labor Relations Act, whether or not you have a union. Consequently, this advice memo probably applies to your company too.