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Criticizing the Employer’s Workplace Diversity and Inclusion Policies

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Section 7 of the National Labor Relations Act (the Act) gives employees the right to engage in “concerted activities” for “mutual aid or protection.”

In general, “concerted activities” are activities or conduct by employees with or on the authority of other employees. This includes activities or conduct by one employee designed to initiate or induce group action.

“Mutual aid or protection” refers to the goal of the concerted activities. In order to have the Act’s protection, the purpose of the activities must be to improve terms and conditions of employment of the employees as a group.

Employers commit unfair labor practices if they discipline or treat employees unfavorably for engaging in said activities.

In a recently published Advice Memorandum, the General Counsel (GC) or the National Labor Relations Board (NLRB or Board) concluded that employees that expressed disagreement with the employer’s workplace diversity, anti-discrimination and anti-harassment policies and initiatives, through postings in the employer’s internal social networking platform and through emails to other employees, were engaged in concerted protected activities. The Act’s protection could not be denied by the fact that the viewpoints expressed were unpopular and that other employees complained to management that the expressed viewpoints made them feel uncomfortable.

So long as the words used by the employees to express their disagreement with the employer’s policies were not derogatory, abusive or discriminatory, the expressions did not create a hostile work environment that would cause the employees to lose the Act’s protection.

The Employer, therefore, committed unfair labor practices by disciplining the employees for their expressions.