STUDY

18 | Business Journal • August 2017 Business Journal • August 2017 | 19

Legally Speaking with Toni Mulvaney

The Economist

with M. Ray Perryman

ECONOMIST | SEE PAGE 19

What if you were enjoying your va- nilla latte at a Starbucks, catching up on the latest on your laptop, and all of a sudden, one of the employees began a heated dispute with the manager in which many expletives (f-bombs) were used in front of customers? Better than watching the soaps, right?

What do you do when an employ- ee posts vulgar, offensive and possi- bly threatening statements on several union newsletters left in an employee break room?

And what if an employer, seeking to maintain a civil, positive work en- vironment, has a policy requiring its employees to use courtesy, allowing no “disrespect to our guests, including discussing tips, profanity or negative comments or actions,” nor “insubordi- nation to a manager or lack of respect and cooperation with fellow employees or guests”?

In these cases, wouldn’t you expect the employer would be well within rights to fire the foul-mouthed, harass- ing employees? Especially when their actions are in violation of company policy? Well, think again. Employees’ derogatory Facebook and other social media posts and offensive remarks have

been permitted by the National Labor Relations Board (NLRB), while em- ployers’ civility codes and courtesy rules have been invalidated.

Under federal law, employees have the right to engage in “concerted ac- tivities for the purpose of collective bargaining or other mutual aid or pro- tection.” It is considered an unfair labor practice for employers to interfere with, restrain or coerce employees in the ex- ercise of these rights. So under recent NLRB rulings, communication, no matter how profane or harassing, will be protected as long as it is somehow connected to workplace issues such as wages, tips, breaks, etc.

Applying these rules to the Star- bucks case above, the NLRB sided with the terminated employee and likewise condoned another employee’s conduct when he cursed at his boss and told him that if he fired him, he would regret it.

In the case with the vulgar and offen- sive written threats, the writer was pro- tected as he was seeking to encourage other employees to vote for the union — despite the fact that his actions vio- lated the company’s nondiscriminatory policy and that female employees took offense and reported the conduct in written complaints.

In a case filed by a Hooters wait- ress, the company policy requiring re- spect was invalidated for being vague and overly broad. Not being allowed to discuss tips was a violation of em- ployee rights, as was the lack of specific examples or definitions of the words

“insubordination,” “lack of respect” and “cooperation.”

Critics complain that taken as a whole, these rulings confer on employ- ees a degree of insulation from disci- pline for misconduct that federal law neither requires nor warrants.

According to researchers and the Equal Employment Opportunity Commission (EEOC), incivility is often a precursor to workplace harass- ment — a gateway to hostile work environment claims. Last year a select task force was created to study harass- ment in the workplace and how em- ployers’ harassment prevention policies can change for the better. The study, among other things, emphasized that the EEOC and the NLRB should work together to harmonize the rela- tionship between them, recognizing that employers often struggle to com- ply with both federal laws that protect “concerted activity” and those that pro- tect equal opportunity. The inconsis- tency between the EEOC’s guidance and the NLRB’s decisions makes it dif- ficult for employers to know what dis- ruptive employee behavior they must — or don’t need to — tolerate.

What can an employer do? Employers should take a look at

their workplace policies and determine whether they need to be revised to minimize friction with the NLRB and still maintain rules that are necessary for a courteous and lawful workplace:

• Make sure your policy is not “vague

or ambiguous.” Carefully craft rules using examples of what is or is not al- lowed.

• Provide definitions of possible am- biguous terms.

• Frame language in a way that an employee understands he/she is still allowed to protest or criticize the em- ployer on workplace issues.

• Consider adding a “savings clause” which explicitly states that the rule is not intended to interfere with the em- ployee’s protected concerted activity — and describe explicitly the concerted activity that is implicated by the rule, but that is not intended to be prohib- ited.

The EEOC also proposes that ha- rassment prevention training be:

• Championed by senior leaders • Repeated and reinforced regularly • Provided to employees at every level

and location of the organization • Provided in all languages common-

ly used by employees • Tailored to the specific workplace

and workforce • Conducted by qualified, live, inter-

active trainers, or, if live training is not feasible, designed to include active en- gagement by participants

• Routinely evaluated by participants and revised as needed.

Toni Mulvaney, J.D. is professor of Business Law at Lamar University. Frank J. Cavaliere, J.D., Lamar Univer- sity professor and author of the Web-Wise Lawyer column in Practical Lawyer is a regular contributor to this column. n

Tension between EEOC, NLRB over civility in the workplace

A large and growing component of international trade won’t fit in a tanker, container, barge or crate. In fact, no matter how hard you look, it is nearly impossible to find some of it with your eyes; much of it is lodged in the cranial cavities found between millions of pairs of ears. The United States has long run a trade surplus in the services category, meaning that we as a nation export significantly more services than we im- port. In addition, the United States is the world’s leader in international trade in services, trading substantially more than any other nation.

Services exports and imports are provided by and to the United States in international markets. They may be supplied across borders (such as a U.S. company sending a team of American accountants to do work at a firm in To- ronto or Tokyo) or consumed abroad (such as a U.S. company providing insurance services in Europe). An in- creasing amount is provided through cyberspace, as engineers, architects and yes, even economists, send the fruits of their labor in impulses through the air and receive payment invisibly through the global electronic funds transfer sys- tem.

Not all services are invisible. Trans- portation is a prime example of one that, while not a tangible good, is easy to experience and visualize. If an Amer- ican passenger flies on British Airways, that’s an import, whereas a foreign passenger on American Airlines is an export. The Commerce Depart-

ment (through the U.S. Bureau of the Census and the Bureau of Economic Analysis) tracks nine categories: main- tenance and repair; transport; travel (for all purposes, including education); insurance services; financial services; charges for the use of intellectual prop- erty; telecommunications, computer and information services; other busi- ness services; and government goods and services.

Last year, U.S. exports of services to- taled more than $752 billion. Of that amount, nearly $206 billion was travel services. Hundreds of billions in busi- ness services were exported, including $98 billion in financial services. More than $124 billion in charges for the use of intellectual property were recorded.

Services imports were nearly $505 billion in 2016, for a surplus of exports over imports of almost $248 billion. For comparison, U.S. goods exports in 2016 were nearly $1.5 trillion, while

imports were $2.2 trillion (for a deficit of almost $753 billion).

Taking a long-term historical look indicates that services exports have nearly tripled since 1999 (note that this data is not adjusted for inflation, which accounts for a portion of the increase). Travel services exports have doubled, and several categories are up by even larger multiples.

For many people, “exports” or “im- ports” brings to mind U.S. factories and the goods they produce or ships loaded with containers of products from around the world making their way across the seas and into U.S. ports. While goods are a larger slice of the trade pie, services are a notable (and much more rapidly growing) component.

Services industries have a notable stake in trade policy. As I have point- ed out before, international trade is a good thing for all involved. In fact, it

Trade you can’t see