Incivility can create an uncomfortable work environment. People feel targeted and victimized if they are on the receiving end of incivility. We applaud the efforts of employers to put in place workplace guidelines governing courtesy and respect. Unfortunately, however, employers are not receiving much support from the National Labor Relations Board, which seems to see in application of most workplace policies a violation of the bully-employee’s right to engage in concerted activity under the NLRA. And, as a result, employers may be losing the very employees who value a respectful and productive work environment.
As discussed by Aurora Kaiser in a summer edition of Employment Law Commentary, employers’ policies requiring courtesy on the job, even in a service industry, have been struck down by the Board on the grounds that employees would reasonably construe broad prohibitions against ‘disrespectful’ or ‘discourteous’ conduct and ‘language which injures the image or reputation of the [employer]’ as encompassing Section 7 activity. See, e.g., Karl Knauz Motors, 358 NLRB No. 164 (2012).
The Board takes an extremely broad view of what constitutes concerted activity. In a case brought by a former Hooter’s waitress, Hoot Wing LLC & Ontario Wings, LLC, an administrative law judge invalidated the policies prohibiting “disrespect to our guests including discussing tips, profanity or negative comments” and “insubordination to a manager or lack of respect and cooperation with fellow employees or guests” as vague and overbroad and violative of the employees’ right to discuss terms and conditions of employment.
In Freesenius USA Manufacturing Inc., 358 NLRB No. 138 (2012), the company investigated under its anti-harassment policy and ultimately terminated an employee who wrote “vulgar, offensive, and, in isolation, possibly threatening statements on several union newsletters left in an employee break room” that caused several female employees to complain multiple times. The Board, over a vigorous and persuasive dissent, concluded that the employee had been engaging in protected activity, seeking others to vote for the union.
Despite NLRB’s efforts to protect uncivil activity, employers may have another trend to deal with: employees who vote with their feet in response to incivility and are unlikely to stay around for an adverse NLRB ruling. According to Civility in America 2014, more than one-quarter, or 27% of the Millennials, have quit a job because their workplace was uncivil.
The Civility in America survey has been conducted by public relations firm Weber Shandwick and public affairs firm Powell Tate with KRC Research since 2010, and this year, they decided to look at civility through a generational lens with a focus on Millennials, those born between 1981 and 1996 (currently aged 18 to 33).
What’s remarkable about the report is that although Millennials are more likely than other generations to have experienced incivility both in person or online, they also are more likely than prior generations to take steps to stand up to incivility. Sixty percent of all Americans are more likely to do nothing in the face of incivility rather than confront it. However, one-third of Millennials (33 percent) report taking a proactive measure the last time they experienced incivility, a rate significantly higher than those of Gen Xers (22 percent), Boomers (18 percent) and the Silent Generation (7 percent). Millennials also were by far more likely to have defended the victim of incivility (16 percent) than other generations, a trend we can hope will grow over time.
Uncivil treatment by a company representative has caused nearly half (49%) of the Millennials to stop buying from the company or advise others not to buy from a company (44%). Professional and college sports have lost fans because of uncivil behavior: one-quarter (24%) of Millennials have stopped attending professional or college sporting events because of uncivil behavior on the field or in the crowd. Millennial parents are twice as likely as Gen X parents to have taken the extreme measure to transfer their kids to different schools because their children were treated uncivilly (22% vs. 11%). One in six Millennials report having moved from a residence because of uncivil neighbors.
Interestingly, although most Americans agree that incivility is disturbingly widespread, the Millennial generation is by far the most hopeful; nearly one quarter believe civility will improve in the next few years.
I agree with Carolyn J. Lukensmeyer, Executive Director, National Institute for Civil Discourse who said, “The modest sign of ‘civility activism’ by Millennials is a refreshing finding from the Weber Shandwick and Powell Tate study. If all Americans were to behave as proactively, we would be one step towards turning our nation back to a more civil environment.”
Perhaps we need Millennials on the NLRB.