A Harassment-Free Workplace vs the Right to Engage in Concerted Activity

1st Talk Compliance features guest Lauren Moak Russell, Counsel at Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware, on the topic of “A Harassment-Free Workplace vs the Right to Engage in Concerted Activity.” Lauren joins our host Catherine Short to discuss how the National Labor Relations Board under the Biden Administration has expressed a renewed interest in expanding its influence into non-unionized work forces. This includes reviewing and–in the right circumstances challenging–employers’ use of workplace civility, confidentiality, and anti-harassment policies. Listen as we discuss what you need to know to safely navigate the National Labor Relations Act while ensuring that your employees enjoy a safe and respectful work environment.

Catherine Short:  0:01

Welcome, and let’s 1st Talk Compliance. I’m Catherine Short, Manager of Virtual Education at First Healthcare Compliance. Thanks for tuning in. This show is brought to you by First Healthcare Compliance as part of our commitment to provide high quality complementary educational resources. We help create confidence among compliance professionals throughout the United States. Please show your support by taking a moment to provide a review on Google, Facebook or iTunes. You can also follow us on Instagram, Twitter, and subscribe to our YouTube channel.

On today’s episode, we are speaking with Lauren Moak Russell, Counsel at Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware, on the topic of a harassment free workplace versus the right to engage in concerted activity. The National Labor Relations Board under the Biden administration has expressed a renewed interest in expanding its influence into non-unionized workforces. This includes reviewing and in the right circumstances, challenging employers use of workplace civility, confidentiality, and anti-harassment policies. Listen as we discuss what you need to know to safely navigate the National Labor Relations Act while ensuring that your employees enjoy a safe and respectful work environment.


Before we begin, I would like to mention at First Healthcare Compliance, we strive to serve as a trusted resource for compliance professionals, and every month we celebrate their hard work and dedication with our compliance Super Ninja recognition. For this episode, we’re spotlighting Super Ninja Sharon Miller, administrator at Gulf Coast Dermatopathology Laboratory. Sharon says “patient care is paramount and by creating a culture of caring, compassion and respect, we have succeeded in all we do. We try to promote a family atmosphere which in turn translates to ultimate patient care”. Congratulations, Sharon. Our team is honored to have the privilege of working with you.


Well, thank you so much, Lauren, for being on First Talk Compliance. Thank you for being here.


Lauren Russell  2:16

My pleasure. Thank you for having me.


Catherine Short  2:18

Today, we’re talking about workplace civility, and also about the National Labor Relations Board. Can you get us started in talking about how things have changed as opposed to the previous administration?


Lauren Russell  2:34

Absolutely. So I think that the first thing that listeners really need to understand is that the National Labor Relations Board is not just for unionized workforces, that it has a role in regulating nonunion workforces, particularly where employer policies impact what we call section seven rights, and that’s really employee’s rights to talk about the terms and conditions of their employment.  This is an area where we see a lot of ebb and flow between Republican and Democratic administrations at the federal level. I know it’s not a popular thing to talk politics these days, it’s oftentimes very inflammatory, but the reality is that the board changes its conduct very significantly between administrations. And so we had under the Trump administration, a board that really saw its role as very limited in terms of just regulating the relationship between organized labor, which is what we call a unionized workforce and management. To a Biden administration and a board that really sees its role as very expansive and is very focused on ensuring that even in a non-organized workforce, so a non-unionized workforce, that employers are conducting themselves in a way that does not adversely impact employees, what we call Protected Concerted Activity. So their ability to talk about the terms and conditions of employment. This includes a lot of things that make employers uncomfortable, including wages, compensation, comparing how much I make to how much you make, masking, vaccination requirements, anything that keeps a manager up at night, is something that almost certainly touches on Protected Concerted Activity and that can be protected by the National Labor Relations Board.


Catherine Short  4:33

So, employees have the right then to discuss their pay with each other. Is that correct?


Lauren Russell  4:41

Yes, it is. This is something that makes employers really uncomfortable. I understand. I come from a family where we don’t talk about money because I think a lot of us do, right? It’s very crass.


Catherine Short  4:59

Yeah. I never asked my parents or if I did, I was shut down right away. You know, like what you don’t talk about, you don’t ask people how much they make, what’s wrong with you?


Lauren Russell  5:09

Even at 40, I don’t know how much my parents made at any point in their lives. So no, it’s not just about being a child. It doesn’t change. That was very much the way of things. In my parent’s generation, it was simply something that wasn’t done, and certainly my grandparents never, never, never, never, in a million years, never. But wages are really the heart of the terms and conditions of employment, that is the most essential thing. So, the National Labor Relations Board for a very long time predating my practice, starting back in 2009, well before that, the National Labor Relations Board has said policies that prohibit employees from discussing and comparing wages are a violation of the National Labor Relations Act. It does not matter if you have a unionized or a non-unionized workforce, you still may not have policies like this. It’s hard, it does create resentment and frustration and questions and gossip among employees. We have to look at it from the flip side, from the public policy perspective. On that side, employees can’t know if they’re being treated unfairly unless they’re able to talk about wages. That’s really the impetus for these policies and I think that it’s helpful, it keeps employers from getting really angry when we look at it from the public policy perspective. Then you can say, well, it makes my life more difficult. I guess I can understand that women or minorities or individuals with disabilities, they couldn’t discover that they were being treated differently if they were never, ever under any circumstance allowed to talk about their wages with other employees. That’s the way we figure this stuff out.


The Obama administration was very focused on the expansion of the role of the National Labor Relations Board, the Trump administration, I had a much more conservative view of the role of the federal government, and really pared back the enforcement activities that the board was engaged in. Now that we are back under a Democratic administration, that role is expanding, again. I happen to be somebody who thinks that predictability is a very important thing for business. So, whether you are going to have an expansive view or a retracted view of the board’s role, and there are grounds to argue for both, it’s not that one side is patently wrong and the other is patently right. It’s really a matter of philosophy, on whatever the case may be, it is good for businesses to know what the expectations of them are. The National Labor Relations Board swings much more broadly than any other federal enforcement agency. That’s a tough thing for employers to cope with so this is really a problem for both sides of the aisle. I don’t think that anybody is conducting themselves, necessarily in the way that provides the most predictability for business. The best we can do here on the outside is to make sure that employers are educated and know that these risks are out there. I’m certainly talking about it a lot more because I am seeing and I was in practice, under the Obama administration, the Trump administration, and now under the Biden administration, I have never seen as much effort to enforce against the private sector, as I am seeing now. So, Biden has held true to his promise to be the most labor friendly president that many of us will see in our lifetimes. So, even though the Obama administration expressed an interest in pursuing these matters, we’re seeing the enforcement drive from the Biden administration that perhaps was not quite so present before.


Catherine Short  9:19

Okay, so it sounds like there’s a lot of reason to be concerned. And I know this from talking to a lot of our administrators, like hospital administrators, practice administrators, all kinds of CEOs and CFOs, etc., that they have a lot on their plates right now and so much to be concerned about. It feels probably for some, that this is just another thing that they need to be worried about, right? If you could give one piece of advice to businesses and if they can only do one thing, what should it be?


Lauren Russell  9:52

I would take a really careful look at handbooks. That is an area that almost every business I represent neglects because, it’s there and this other thing is an emergency and  I’ve got to put out that fire. And to your point, everybody has a tremendous amount of work on their plates right now. This is the most difficult environment to operate and that I’ve ever seen. It is truly amazing that people are able to get up and soldier on every morning. That’s from the management side and from the labor side, everybody’s got a lot on their plate. If we could move the handbook to the top of your non-emergency stack, that’s what I would do. Handbooks should really get a thorough going over every couple of years anyway. If you haven’t taken a careful look at your handbook in the last two years, to update it and make sure that it’s compliant with your current labor and employment laws, that’s a great thing to do. And take a look at those things: workplace civility, social media, and make sure that you’re really focused on illegal behavior and not just that employee shouldn’t say things that make us unhappy. Any policy that’s designed to keep employees from saying embarrassing things in public is going to likely be a problem. We should really be focused on: do not engage in illegal behavior, if you are on Facebook with a picture of you and your favorite marijuana paraphernalia that’s something we can prohibit. We can prohibit harassment and discrimination and defamation. Defamation is illegal behavior. That is it’s a tort, it is unlawful. You can prohibit defamatory conduct. But when we’re talking about general civility and being nice and be courteous, that’s a tough thing to enforce.


Catherine Short  11:44

If you’re just tuning in, you’re listening to 1st Talk Compliance brought to you by First Healthcare Compliance as part of our commitment to provide high quality complimentary educational resources. We help create confidence among compliance professionals throughout the United States. My guest today is Lauren Russell, Council at Young Conaway Stargatt & Taylor, LLP, on the topic of a harassment free workplace versus the right to engage in concerted activity.

Please show your support by taking a few minutes to provide a review of First Healthcare Compliance on Google or Facebook. You can also follow us and subscribe on all forms of social media.


Okay, could you talk to us about the National Labor Relations Board or the NLRB’s current enforcement policies?


Lauren Russell  12:35

Yeah, I mean, as I said a few minutes ago, there’s really been a focus on expanding their role in the private sector non-unionized workforce. When we’re looking at that, the driving force behind this is the current general counsel for the board, Jennifer Abruzzo. She is a brilliant woman. There has been a sense at times that she may be a little bit more aggressive than even sometimes the unions are comfortable with. But she is the driving force behind these priorities, and they include a couple of things.

She certainly is very focused on lowering barriers to unionization in the workforce. And so she’s looking to bring back certain on administrative policies from the Obama era that either got stalled out or were challenged in court, including lowering thresholds to union organizing, and in a non-unionized workforce. And then also making it harder to oust a union, once it’s in. She is looking to reverse past decisions by the National Labor Relations Board under the Trump administration. It’s helpful to understand a little something about the composition of the board. The board consists of five individuals, five members who are appointed. Under a Democratic administration, it’s usually three Democrats, two Republicans, under a Republican administration, it’s usually three Republicans and two Democrats, and then the general counsel is a presidential appointee. So, she was appointed by Biden, after he terminated her predecessor, who was a Trump appointee who refused to step down. So, there’s a bit of a kerfuffle there. The board changes its orientation very promptly upon a change in administration. You usually have to wait for some for one of the members to come to the end of their tenure, but then you have a very rapid switch, and so the board can completely flip from a Democratic and Republican administration. With that in mind, with that background, she’s looking to reverse precedent on a couple of things including when an employee is engaged in Protected Concerted Activity. She wants to reverse some case law that held that an employee is not engaged in protected activity when other employees don’t join in complaint or offended by the complaint. This is really designed to protect individuals who are expressing unpopular opinions. She wants to reverse past case law that gave employers discretion, she wants to limit employers’ ability to impose confidentiality in the course of internal investigations and in settlement agreement and challenge that, because it impacts an employee’s freedom to speak about the terms and conditions of employment.


Then she really wants to focus on limiting what an employer can do in a handbook. So, limiting a handbook policies that in any way, on their face, would make a cautious employee less likely to engage in their section seven rights. By that I mean to talk to other coworkers about terms and conditions of employment. When we’re looking at those kinds of policies, we’re looking at confidentiality, non-disparagement, social media, media communications, civility, and respectful workplace policies, offensive language prohibitions, and no cameras at work rules. All of those things, when they are applied in just the right way can make a cautious employee and that’s the standard she wants. Not an average employee. Usually in the law, we look at a reasonable person, right? That is an imaginary reasonable person is who we look at when we decide what the legal standard is. She says, no, I don’t want you to think about a reasonable person. I want you to think about a cautious employee. That is our standard. If they feel like an employer policy, inhibits their ability to speak freely to coworkers about terms and conditions of employment her position is that handbook policy gotta go


Catherine Short  17:20

Can you expand a little bit more on what her definition of what a cautious employee might be?


Lauren Russell  17:25

Well, it’s certainly not a defined concept. But I’ll tell you a cautious employee is one that complains to the board.


Catherine Short  17:31

In my mind, a cautious employee would be somebody who’s super careful, but who would not complain, who would be really careful about what they say. Cautious to me is caution.


Lauren Russell  17:42

Keep in mind that the National Labor Relations Board, like every other federal agency has very limited resources. So as a general rule, they do not have a practice of auditing, non-unionized workplaces. The board would not knock on the door at First Healthcare Compliance and say “we’d like to see your employee handbook, please show it to us”. Similarly, they would not do that at my firm. So what has to happen is an employee has to go to the board and say, I think this, this handbook is discouraging. It’s somebody who’s not necessarily complaining internally and that is very frustrating to employers as well. How was I supposed to know you felt discouraged? I didn’t intend to discourage you. You never told me you felt discouraged. Instead, you went off and filed a charge. That’s the cautious employee.


Catherine Short  18:38

Okay. All right. Interesting. Okay, let’s talk about social media for a second. Can you explain a little bit about what is expected concerning social media at this time?


Lauren Russell  18:52

Social media is my nightmare.


Catherine Short  18:56

And for a lot of employers. You have some employees who don’t engage in social media whatsoever, and then some employees who are extremely engaged. So what’s the role right now?


Lauren Russell  19:07

Yeah. Certainly, you can expect employees to be lawful online. That is a perfectly reasonable expectation to say. Believe it or not, I’ve got clients who have to have a policy that says, Please do not post photos of unlawful activity. You should not have open containers of alcohol in a vehicle. You should not post photos of your marijuana paraphernalia. You should not post racist diatribes on Facebook. Depending on your workforce that may or may not be something you need to say. All of that behavior is something that you can expressly prohibit. What you can’t prohibit and what a lot of social media policy say is that you may not post anything online that criticizes the company or its customers client, patients etc. Now, in the healthcare context, we have some additional overlays. Most employees have HIPAA obligations, and you can absolutely say you may not post anything online that violates your duty of confidentiality under HIPAA. You cannot say Mrs. Smith was in today and she was a raging you-know-what, and I hate her and I hope she never comes back to this practice.


Catherine Short  20:26

I know perhaps some people like to go on diatribes on social media, personally, as themselves not as representative of their company and say, all kinds of things.


Lauren Russell  20:38

When we’re talking about where the board wants to flex its authority, it comes in two places. One is the policy itself. If you have no social media policy, then then there’s nothing for them to look at. The other is, when we apply the policy, are we adversely impacting Protected Concerted Activity. Going on Facebook and saying every member of the Green Party is an unmitigated idiot is not protected concerted activity, it’s not about the workplace, it’s about the world out there. So you can absolutely and if a patient or a coworker comes in and says, your receptionist on Facebook called me an idiot, and I don’t want to deal with them anymore, if you don’t fire them, I’m going to leave the practice. That’s okay. You can fire the employee, because their social media conduct has adversely impacted the business and they have tied themselves to the business in some way. Very frequently this happens because somebody tagged themselves to your company’s Facebook page, or they have a picture of themselves wearing a First Healthcare Compliance T shirt, and so they associate themselves online, and then somebody figures it out. They say,  so and so was saying offensive things on the internet, I see they’re wearing their shirt, I went to your website and see that they work for you and I think you should know about that.  I have had those cases and that person’s gone. They were the ones who tied themselves to your company on the internet and that’s their fault.


When we’re talking about actual concerted activity or the impact on the workplace, and this does happen, somebody posts on the internet, for example, something inflammatory about undocumented immigrants that borders on racist right on or says every member of the Republican Party is a racist, you can’t be Republican and not be racist, and you have a Republican employee who says, this is outrageous. This person is calling me racist on the internet, I’m deeply offended, I don’t feel comfortable working with them anymore. Again, that behavior is not protected, concerted activity. They’re talking about Republicans out in the world, they’re not saying the Republicans I work with are racists, they’re saying all of them in their totality. That is again, behavior that creates a hostile environment, it makes people deeply uncomfortable, and you can discipline that behavior, or you can terminate the employee. In the same way if somebody was posting racist or sexist messages, so instead of calling somebody else racist, I am posting deeply inappropriate things on the internet, jokes and memes about women should be barefoot and, in the kitchen, right? Because a female coworker comes in and says, I am deeply offended. I am a working woman and a mother, and this person thinks my only worth is to be at home. Like that’s, that’s offensive to me. Okay, we can discipline that behavior.

Where the board gets interested, is when an employee goes on social media and criticizes the employer. If I go in on social media and say, my manager at XYZ company is racist, he will not denounce police violence in the country. Or he is paying female employees less well than male employees. That is Protected Concerted Activity. I have gone into a public environment and on behalf of myself and other workers have criticized management and said, this is an illegal environment, or there were unlawful behaviors happening here. I don’t know a single manager that I’ve ever met, who wouldn’t be deeply offended and upset that somebody took that to Facebook instead of talking to them first. And so the gut reaction is always fire them, discipline them. They took internal business to Facebook, they never talked to me. I had no chance to deal with this and now they’re defaming us on social media that’s Protected Concerted Activity and that is a real risk to the business if you discipline.


Catherine Short  24:47

So I have a question about employee expectations and labor rights perhaps do they extend to part time contract employees and also interns?


Lauren Russell  24:57

They apply to part time employees. Yes. Contractors? No. When you have independent contractors who are regularly working on your site like temporary staffers, the answer is often Yes because there’s a joint employment relationship. Interns, it depends. But generally if they’re paid interns like a summer intern, yes, they’re going to be covered. If it’s a volunteer, like at a hospital, you often have individuals who come in to read to sick children, or they will sit with the elderly patients. Those are not employees of any stripe, they’re volunteers. And even if it’s sort of a summer internship candy striper situation, it’s really more on the nature of volunteerism, and not within the scope of the board’s authority.


Catherine Short  25:47

Okay, well, I think we’re just about out of time. Did you have any other words of advice or things that you wanted to discuss that we didn’t talk about? Perhaps,


Lauren Russell  25:59

No solid guidance, but I will tell you anecdotally that I have watched businesses unionized, and I have watched them vote out unions. The key distinction is a level of basic respect between management and labor. You know, there’s a lot of research out there on healthy marriages. The marriages that succeed are ones where there’s mutual respect between spouses. If there’s a lack of respect, if spouses roll their eyes at each other, that’s a sure sign that one day they’re going to be divorced. That same guidance applies to labor management relations. You don’t have to agree on everything, and they oftentimes don’t. But when you can have dignity and respectful communications, that is a workforce where you are much less likely to see unionizing efforts generally, and specifically where you’re going to see even in non-unionized workforces, where you’re going to see charges brought before the board. When employees feel respected, and like their partners, you are always going to be in better stead. It’s a hard thing to do, but cultivating respect, making sure that even your low-level employees feel like they are a critical part of your success, and that they help you to have a voice in how decisions are made. It’s hard to do, but that makes a huge difference. Okay,


Catherine Short  27:33

Well, I want to just thank you so much. Lauren, did you have any other words of advice that you wanted to leave us with today?


Lauren Russell  27:39

Tolerance, kindness. I will tell you that you run into union problems when both sides of the equation management and employees are not able to take a deep breath and say, hey, I really need you to hear me but I could have said that nicer. I keep seeing these news headlines about how mean people are right now, that people are just hit their limits and they are mean. I hear that anecdotally from clients too. I think we’ve got to take a deep breath and be a little less mean. When there was a sense of respect and dignity between labor and management you really avoid the vast majority of these issues. So kindness.


Catherine Short  28:22

Great. That’s always wonderful advice. I wanted to thank you so much for being here today.


Lauren Russell  28:27

Very happy to be here. Thank you for the opportunity.


Catherine Short  28:31

And thanks to our audience for tuning in to 1st Talk Compliance. You can learn more about the show on the program’s page on healthcarenowradio.com and lend your voice to the conversation on Twitter @1sthcc or #1stTalkCompliance. You can also email me at catherineshort@1sthcc.com. I’m Catherine Short of First Healthcare Compliance. Remember, compliance is the key to achieving peace of mind.


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