Labor law, which provides an avenue for the collective action of employees, and employment law, which allows persons to bring individual grievances against their employers, both govern the American workplace but often are seen as antagonistic to each other.1 Section 8(a)(1) of labor law’s foundational statute, the National Labor Relations Act2 (NLRA), prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees”3 in their exercise of Section 7 rights to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”4 In 2004, the National Labor Relations Board (the Board or NLRB5) ruled that the NLRA’s protections did not cover an employee seeking aid from coworkers when pursuing an individual sexual harassment complaint.6 Recently, in Fresh & Easy Neighborhood Market, Inc.,7 the Board overruled this holding,8 opening up NLRA protection to cover the collective action of employees asserting their individual rights under Title VII of the Civil Rights Act of 19649 and other employment law statutes. In so doing, the Board partially mended weaknesses in employment law’s individual-rights regime and provided an avenue for employees to take a more active role in shaping their companies’ discrimination policies.
In August 2011, Margaret Elias, a cashier at Fresh & Easy Neighborhood Market, left a message on a breakroom whiteboard asking her supervisor if she could be trained in TIPS, a program related to alcohol sales.10 The next day, Elias found the message defaced by a coworker who had changed “TIPS” to “TITS” and drawn a worm or peanut-shaped cartoon urinating on her name.11 In response, Elias notified her supervisor and filed an internal sexual harassment complaint with the company’s employee-relations department.12 To support her claim, Elias sketched a picture of the whiteboard drawing and had two female coworkers sign it.13 One coworker subsequently stated that she signed the document in response to Elias’s “bullying,”14 while the other felt “intimidated” by Elias.15 The company’s employee-relations manager investigated the incident, asking Elias why she felt the need to obtain coworker signatures and instructing her to refrain from obtaining further statements while the manager completed the investigation.16 The company disciplined the employee who had altered the whiteboard message and took no adverse action against Elias in response to complaints filed against her by coworkers.17 The month after the incident, Elias filed an unfair labor practice charge against her employer, alleging that the employee-relations manager infringed on her Section 7 rights by interrogating her about her statements to coworkers and asking her to refrain from obtaining witness statements.18
The administrative law judge (ALJ) found that the manager’s statements to Elias did not violate the NLRA.19 Following Board precedent articulated in Holling Press, Inc.,20 the ALJ stated that Section 7 did not protect Elias’s actions because he saw “Elias’[s] outrage . . . [as] personal and . . . not shared by the other employees,” failing to satisfy the requirement that protected actions be concerted and undertaken for mutual aid or protection.21 Since Elias’s gathering of signatures was not covered by the Act, the manager’s request that Elias refrain from such activity “was not meant to deprive her of her right to engage in concerted activities” in violation of the Act.22 The acting General Counsel of the NLRB appealed the ruling.23
The Board affirmed the ALJ’s ruling that the employer did not violate the NLRA but reversed his ruling that Section 7 did not protect Elias’s actions taken in response to the alleged sexual harassment.24 In reaching its holding on the Section 7 question, the Board engaged in a two-pronged analysis, considering whether Elias’s activity was “concerted” in nature and undertaken for “mutual aid or protection.”25 To qualify as “concerted” activity, the Board noted that the activity “must be engaged in with the object of initiating or inducing group action,” and can include mere “preliminary discussion” among employees, as well as a single employee’s seeking the aid of other employees.26 It sufficed that Elias enlisted the aid of her coworkers in raising a sexual harassment complaint with management, regardless of whether her coworkers sought to file a joint complaint.27
Turning to the “mutual aid or protection” prong, the Board explained that the term is best understood under the “solidarity” principle, a “bedrock principle” of American labor law that sees one employee asking another for aid in raising an issue with management as a tacit request that a “coworker exercise vigilance against the employer’s perceived unjust practices” that affect the workplace as a whole.28 Under this principle, the Board found that Elias’s asking coworkers to corroborate her sexual harassment allegation satisfied the “mutual aid or protection” prong.29 The Board reasoned that Elias’s actions sought not just to address this individual instance of alleged sexual harassment but also to “prevent similar conduct in the future” that might extend to other employees.30 In reaching its decision, the Board overturned Holling Press, which had held that the actions of a sole victim of sexual harassment in seeking support from other employees did not satisfy the “mutual aid or protection” prong.31 The Board explained that Holling Press “seemed to create a special exception [to the solidarity principle] for sexual harassment claims” and was inconsistent with applicable precedent.32
But despite its impassioned defense of Elias’s Section 7 right to seek help from coworkers in pursuing her sexual harassment claim, the Board found her employer’s actions had not violated this right.33 Because the manager’s request that Elias not obtain additional coworker statements was “narrowly tailored” to the manager’s legitimate interest in conducting an investigation into the alleged sexual harassment, the manager’s actions did not violate the Act.34 Additionally, the manager’s questioning about why Elias felt the need to obtain witness statements was permissible because the questioning was in response to coworkers’ complaints about Elias’s actions.35
Board Member Miscimarra concurred in part and dissented in part. Although he agreed that Fresh & Easy Neighborhood Market had not violated the NLRA, he disagreed that Elias’s activities were protected by Section 7, finding that her conduct failed both prongs of the test.36 Member Miscimarra further contended that the Board majority had mischaracterized Holling Press, which he believed was faithful to both NLRA and Board precedent in requiring evidence that an employee’s concerted actions serve the interests of her coworkers for the purpose of mutual aid or protection.37 Additionally, Member Miscimarra expressed serious reservations about the policy implications of the majority decision. He stated that it would lead to “an unprecedented expansion in Section 7 coverage” to virtually all claims under employment law statutes.38 This expansion, he argued, would “undermine the many important non-NLRA statutes and regulations that afford individual protection to employees” by subjecting these statutes to process restrictions uniquely tailored to the NLRA’s group-rights schema.39 He noted, for example, that Board precedent prohibiting an employer from questioning an employee about protected Section 7 activities or surveilling such activities would interfere with an employer’s ability to meet its obligation to remedy Title VII violations.40
Member Johnson also concurred in part and dissented in part. He agreed with the Board majority that Elias’s conduct fell under Section 7 because the conduct she sought to remedy created a hostile work environment for all female employees.41 He disagreed, however, with the conclusion that one employee’s asking another employee for help in filing a complaint would automatically fall under Section 7, noting that some forms of discrimination may affect only one employee.42 Member Johnson concluded by joining Member Miscimarra’s critique that the Board’s holding would damage an employer’s ability to investigate potential violations of other employment statutes.43
Because of their focus on perceived hard divisions between employment law and labor law,44 Members Miscimarra and Johnson did not account for the ways in which Fresh & Easy may allow employees to use labor law to compensate for employment law’s shortcomings.45 Their opinions share three flaws: First, they ignore Supreme Court precedent that has reduced the efficacy of individual employment law claims as a means of regulation. Second, they fail to see how labor law might add value to employment law by bolstering employee leverage and providing employees an additional avenue to assert greater voice in company policies. Finally, they overstate possible negative effects created by applying NLRA restrictions in a Title VII context.
Persons asserting their individual Title VII employment rights to improve their workplaces face increasingly difficult legal obstacles. Central to employment law’s efficacy has been the “litigation threat” posed by individual employees, which “has driven much internal workplace reform.”46 However, Supreme Court decisions in the 1990s diminished the ability of this threat to protect the rights of workers by providing employers with an affirmative defense to charges of discriminatory hostile work environments if they could show that they took reasonable care to prevent such environments.47 In 2013, the Court made it still more difficult for an individual to prevail in a Title VII claim against his employer, holding that employees alleging retaliation in response to their filing a Title VII complaint must prove “but-for” causation in order for such claims to succeed — a standard that requires plaintiffs to prove that any legitimate reason offered by the employer for taking the adverse action would not have actually resulted in the adverse action absent the protected Title VII activity.48
Meeting these higher legal standards is difficult in practice. For example, employers sometimes act to protect favored employees who have allegedly violated employment law statutes over disfavored victims of such individuals.49 Such employer behavior might convince a judge in a sexual harassment lawsuit to find but-for causation in the employee’s termination, but another judge might weigh such employer behavior against alleged misconduct by the complaining employee and find that the employer’s termination decision was justified. Even if an employee did have a legally cognizable Title VII claim, her ability to obtain redress would depend on her knowing her rights and having sufficient resources to pursue her claim. Depending on differing work cultures and knowledge bases, aggrieved employees may at times seek the protections of labor law before taking Title VII–prescribed action.50 In such instances, employees should not be denied or delayed relief because they did not choose the option — preferred by the dissenters — to pursue claims that, though overlapping with Title VII, could permissibly be adjudicated by the NLRB.
In light of these legal developments and practical realities, protecting group efforts to vindicate individual rights might provide positive value in advancing employment law’s goals of creating safe and healthy work environments. Because of the Supreme Court’s evolving employment law jurisprudence, Title VII rights might be further abridged by employer-drafted policies that provide a “mere pretense of internal process,” which may result in “a disguised form of [workplace] deregulation.”51 To prevent this from happening, workers likely must play a greater role in internal regulation.52 Although one individual’s Title VII complaint may seem removed from the collective action of seeking greater workplace-policy input, requesting aid from coworkers can be seen as a first stage of collective activity, triggering the solidarity principle identified by the Board. Protecting this nascent collective action is important because worker participation in early rounds is likely to increase participation at later stages — not only by the initial participants, but also by other coworkers.53 Additionally, a failure to protect nascent activity would likely decrease the probability of future collective action.54
Moreover, because employers may resist employee input on company policies as an intrusion into management rights or as an attempt to form a proto-union,55 Section 7’s protection of collective action would create a new kind of litigation threat to make employers more receptive to employee input. Faced with the possibility of a protracted unfair labor practice proceeding56 and unwanted attention from union organizers as a result of such a proceeding,57 an employer may determine that the costs of resisting nonunion employees’ desire for a greater say in company policy outweigh any benefits from retaining exclusive control over such policies.58
Contrary to the dissenters’ fear, these positive protections likely will not substantially undermine employers’ ability to rectify Title VII violations. In reciting a litany of NLRA restrictions on employer conduct, the dissenters ignore longstanding precedent that reflects concern for an employer’s ability to investigate employees for wrongdoing. Even absent Title VII concerns, employers may compel employees to answer questions on disciplinary matters. In Cook Paint & Varnish Co. v. NLRB,59 the D.C. Circuit held that an employer could threaten to discipline an employee if the employee, in the context of a grievance-related investigation, refused to answer questions related to a coworker’s conduct.60 Presumably, an employer’s actions in conducting an investigation required to escape Title VII liability would receive even greater deference from the Board. Indeed, this presumption appears to have applied in Fresh & Easy, where the majority refused to find that the employer violated the NLRA in conducting its investigation.61 Of course, labor law process restrictions might still weaken employment law if Section 7 protection of an individual’s sexual harassment complaint caused an employer to refrain from conducting a thorough investigation in fear of labor law liability. This seems unlikely, however, given an employer’s incentive to avoid the greater damage awards available under Title VII.62
Because the Board’s ruling creates positive value for individuals asserting Title VII rights while imposing no greater burden on employees or employers in pursuing the values behind Title VII, Fresh & Easy reinforces a growing trend in which legal protections of employees’ individual and collective rights are understood as more harmonious than previously believed. Given the dilution of Title VII’s individual-rights protections, the ability of workers to use the two statutes in combination has become increasingly important.