The National Labor Relations Board (NLRB) in August found that an employee who asked co-workers to provide evidence of sexual harassment had engaged in “concerted activities” for “mutual aid or protection” that are protected by the National Labor Relations Act (NLRA).
Until now, harassment retaliation has been under the purview of the EEOC. Now the NLRB is joining the fight, and employers should beware. This ruling could pave the way for the NLRB to insert itself in enforcement of dozens of state and federal laws already handled by other agencies.
The case—Fresh & Easy Neighborhood Market, Inc.—involved a note an employee wrote on a break room white board. Someone substituted a “t” for the “p” in “tips.”
The woman who wrote the original note on the board was offended and got several co-workers—some reluctantly—to sign a statement confirming the alteration.
Anmanager then told the woman to stop collecting statements, although she was free to ask co-workers to be witnesses for her. The woman was never disciplined (the man who altered the board was) or threatened with discipline.
The employee relations manager assured the woman in writing that she would be protected against retaliation.
She filed an NLRA complaint anyway. The NLRB ruled that, despite following almost exactly the EEOC’s anti-harassment guidance, the employer had violated the NLRA.