Condon McGlothlen Published in HR Magazine

The July 2006 issue of HR Magazine includes and article by Condon ("Inclusive, Exclusive Or Outlawed?) that cautions employers to be aware of legal limits on their discretion in forming and working with employee affinity groups and highlights some basic principles of both employment law and labor law to help establish certain boundaries and provide guideposts for organizations that are creating or administering such groups. He notes: "For many companies, workplace diversity has become a business imperative. It may be integral to their corporate identity and reflected in mission statements and annual reports, on boards of directors and in deliberations for staffing positions at all levels. At the heart of many workplace diversity initiatives are employee “affinity groups.” Broadly speaking, these are employer-recognized groups of employees who share the concerns of a common race, gender, national origin or sexual orientation—characteristics protected in some instances by law and in many organizations as a matter of company policy."

"Whether your organization already has committed to allowing or encouraging affinity groups or is just now thinking of doing so, remember that forming and maintaining such groups must be done within the confines of federal and state antidiscrimination and labor laws. Employers must not discriminate unlawfully in terms of the categories of employees they permit to form affinity groups, and they must take care not to negotiate with any group in a manner that might violate federal labor law. What these two admonitions precisely mean is not altogether clear. Affinity groups have been around for decades, but very little labor or employment case law specifically addresses their fundamental legality, or definitively limits management’s discretion as to what groups to allow, who may participate and what the groups may do."

"Affinity groups must not negotiate with the employer; that is, they must not make proposals to management involving employment terms and conditions, which management then could accept or reject, or to which management could make a counterproposal. Affinity groups, however, would not be considered labor organizations if they are more properly characterized as “brainstorming” or “information-sharing” entities. This would make them analogous to the classic example of the suggestion box—a place where management solicits and receives multiple ideas but remains free to adopt or ignore any, and refrains from formalized give and take, or negotiation. Consider positioning affinity groups as brainstorming or information-sharing entities by making it clear that management will consider multiple—even inconsistent—approaches to an issue of concern, but it will not entertain a group’s formalized proposal or set of proposals presented to management. If an affinity group is a work team performing management functions, it would not be a labor organization under the NLRA. Accordingly, groups focusing on productivity, teamwork, customer relations or public image (as opposed to work hours, pay issues, promotions or work assignments) are more likely outside the NLRA’s scope."