NLRB Memo Advises on How to Harmonize Labor and EEO Requirements

Author: Robert S. Teachout, Brightmine Legal Editor

January 22, 2025

Both the National Labor Relations Act (NLRA) and EEO laws against discrimination can and should be given full effect by employers, according to a new memo from Jennifer Abruzzo, General Counsel of the National Labor Relations Board (NLRB).

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; and
  • 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 In addition, it was issued just days before President Trump's inauguration and could be rescinded by the new administration.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.