Employers Must Consider the Context When Responding to Complaints of Hostile or Offensive Conduct
Stephen R. McCutcheon, Jr., Attorney at Law
With Governor Brown’s signature of Assembly Bill 2053, the State of California is intruding further into the workplace – mandating that employers with 50 or more employees teach supervisors about prevention of “abusive conduct” by an employer or employee. While this law only requires anti-bullying training, it is viewed by many employment and labor law practitioners as the first step to establishing a prohibition on uncivil behavior in the workplace – and yet another basis for employer liability. Regardless of the wisdom or effectiveness of trying to train adults to be nice to each other, the problem with AB 2053 is that it may lead employers to violate their obligations under the National Labor Relations Act (“NLRA”).
By the time we reach employment age, most people understand the need to act civilly with customers and coworkers, and treat people with respect. Not everyone learned these life lessons, and employers unfortunately have to deal with employees who are abusive and hostile to management, other employees, or customers. With the adoption of AB 2053, Governor Brown and the Legislature ignore that an employer’s hands are often tied by state and federal law when dealing with abusive and hostile employees. These conflicting mandates make it exceedingly important that employers consider the specific circumstances of any otherwise offensive and objectionable behavior and determine whether it is protected by the NLRA or other laws.
For example, in Hills and Dales General Hospital 360 NLRB No. 70, the National Labor Relations Board ruled that the employer’s Values and Standards of Behavior Policy’s requirement that employees “not engage in or listen to negativity or gossip” was overbroad and unlawful under the NLRA. The Board has also found it unlawful for an employer to discipline employees for the “inability or unwillingness to work harmoniously with other employees.” 2 Sisters Food Group 357 NLRB No. 168.
A further example of the NLRA’s potential conflict with policies designed to prevent harassment and bullying is highlighted by the Board’s decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37. In Hispanics United, an employee indicated that she was going to complain to management about the performance of other workers. The other employees took to social media to respond, and were fired for violating the employers’ “zero tolerance” policy toward bullying and harassment. The NLRB found that the employees’ social media posts were protected “concerted” activity within Section 7 of the NLRA because the employees were protecting themselves against employment related accusations, and noted that an anti-bullying policy cannot be enforced if it discourages activity protected by the NLRA.