In an Advice Memorandum released by the National Labor Relations Board (NLRB) on Feb. 27, the NLRB’s Office of General Counsel has taken the position that group discussions in the workplace concerning racial bias are protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), and employees who engage in such activity are protected from employer retaliation.

The matter involved an unfair labor practice charge brought by physician Aysha Khoury, who was hired in 2020 as a faculty member at the Kaiser Permanente Bernard J. Tyson School of Medicine in Pasadena, California. In the wake of publicized police shootings of Black people, Khoury engaged in group discussions with a group of students and fellow faculty members to discuss racial representation and racial bias in the medical field.

Also discussed in the meeting was an email that the medical school’s dean sent out to faculty, staff and students concerning the recent police shooting of a Black man that occurred near the medical school’s campus, which members of the group considered tone deaf and showing implicit racial bias. According to the NLRB memorandum, during the group discussion, Khoury wore a t-shirt with the words “I can’t breathe,” which was in reference to the 2020 death of George Floyd while in police custody. During the group discussions, it was reported that students became emotional and upset.

Following the group discussion, Khoury was notified by the medical school that her teaching privileges had been revoked pending an investigation. Khoury was later reinstated, but following her Twitter posts about the situation, she was informed that her teaching contract would not be renewed.

In finding that the medical school retaliated against Khoury in violation of Section 8(a)(1) of the NLRA, the NLRB’s Advice Memorandum stated:

Concerted activity for the benefit of all employees under the NLRA frequently deals with employee discussions regarding such basic issues as wages, benefits or work schedules that “seek to initiate, induce or prepare for group action, or statements directed toward management communicating a truly group complaint.” In this instance, the NLRB noted that “because working to end systemic racism, including its impact on the Employer, inures to the benefit of all employees, the discussion (and tweets) was for mutual aid or protection.” The Advice Memorandum from the NLRB is notable because typically the federal agency that addresses retaliation from workplace complaints of racial bias is the U.S. Equal Employment Opportunity Commission (EEOC).

After her termination, Khoury filed a Charge of Discrimination with the EEOC and filed a lawsuit in federal court, which the parties settled in January 2023. Khoury is currently a faculty member at Morehouse School of Medicine in Atlanta.

In addition to expanding the definition of concerted activity under the NLRA, this recent Advice Memorandum also underscores that the NLRA applies to most private-sector businesses, whether they actually have a union or not.

Source: Phelps Dunbar LLP – Mark Fijman

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