NLRB memo advises on how to harmonize labor and EEO requirements

Published: January 22, 2025 | by Robert S. Teachout, Legal Editor

Memorandum 24-04, Harmonization of the NLRA and EEO Laws, emphasizes the importance of complying with all requirements of these laws and offers suggestions for compliance in key areas where the laws potentially overlap:

• Workplace civility rules.
• Investigative confidentiality policies.
• Employee speech or conduct in the context of NLRA-protected activity.

“Harmonization is possible because neither body of law sets forth absolutes in areas of potential overlap. Each leaves space for the other to operate,” said Abruzzo. “Regulated parties thus can and must understand and comply with both sets of laws.”

The memo explains that employers can establish clear anti-harassment rules and regularly communicate them to employees, so long as the types of preventive measures are clearly focused on harassment. If the laws are not overly broad and vague, they are unlikely to raise NLRA concerns.

Similarly, Abruzzo noted in the memo that room exists for both bodies of law to be enforced regarding confidentiality rules during workplace disciplinary investigations into alleged harassment based on EEO-protected characteristics. “Investigative confidentiality rules are neither always required for EEO purposes nor always prohibited by the NLRA”, Abruzzo said.

The memo is intended for use by the NLRB regional offices. It is not legally binding and does not create new compliance obligations. In addition, it was issued just days before President Trump’s inauguration and could be rescinded by the new administration. However, the memo offers useful insight and guidance that employers have requested for several years about how to reconcile seemingly opposing requirements between the two sets of law.

Nevertheless, employers should still be cautious in situations implicating both the NLRA and EEO laws. While Abruzzo is granting some deference to the EEOC in those narrow set of circumstances where those laws overlap, she is reaffirming her view that many common policies on conduct and civility will not survive Board scrutiny, according to attorney Robert Boonin, a member at Dykema.

“The Memorandum does not give employers much comfort,” Boonin says. “Employers still need to audit their rules and handbooks under the Board’s new Stericycle standard.” He also advises employers to tread carefully before imposing confidentiality expectations on employees while investigating employee misconduct and claims of discrimination, and to consult legal.