NLRB Changes Course With Respect to Offensive Language in the Workplace

Aug 6, 2020

The National Labor Relations Board recently made it easier for employers to terminate or otherwise discipline employees for making offensive or abusive statements, including profane, racist, and sexually unacceptable remarks, in the course of protected activity.
In a case called General Motors, the Board reversed an agency judge’s ruling that General Motors violated the National Labor Relations Act (“NLRA”) by suspending an employee who cussed out his supervisor while engaging in protected union activity. In its decision, the Board completely changed its framework for analyzing when an employee can be terminated or otherwise disciplined for engaging in offensive or abusive conduct.
Under prior Board precedent, an employer violated the NLRA when it disciplined an employee for engaging in abusive conduct in the course of otherwise protected activity unless the employee’s conduct was severe enough to lose the protection of the NLRA. Examples of “protected activity” include attempting to unionize a workforce, advocating to the employer on behalf of workers on matters relating to terms and conditions of employment, or processing grievances under a collective bargaining agreement. Whether specific abusive conduct was severe enough to lose the protection of the NLRA was determined by applying different standards specific to the context of the protected activity at issue. For example, the Board applied different standards to conduct engaged in with management, social media posts and other conversations among employees, and picketing.
Such prior precedent gave employees significant leeway for impulsive behavior and too often protected extremely offensive and harassing language in the workplace. For example, in Pier Sixty, the Board held that an employee’s profanity-laced Facebook posts attacking his supervisor and his family did not lose the protection of the NLRA. Additionally, in Cooper Tire, the Board protected an employee who shouted racially offensive comments at employees crossing a picket line. These context-specific standards failed to yield predictable and equitable results and in some instances significantly clashed with various federal and state anti-discrimination laws.
The Board will now apply its well-known Wright-Line analysis to determine whether an employer has unlawfully discharged or otherwise disciplined an employee who engaged in abusive conduct in connection with the protected activity. Under Wright Line, Board prosecutors must prove that (1) an employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had an animus against such activity. If the Board prosecutor proves the above factors, the burden then shifts to the employer to show that it would have taken the same action against the employee even in the absence of protected activity.
General Motors is a much welcomed decision for employers who can now adequately promote a more harmonious workplace free from abusive and harassing behavior without running afoul of the NLRA. Nonetheless, employers should take care to avoid retaliating against employees solely for their protected activity. When an employee who is engaging in protected activity crosses the line and engages in abusive behavior, an employer is still well advised to consult with counsel to evaluate whether disciplinary action will be defensible under the Wright Line analysis.

If you have any questions regarding the above changes in Board law or need assistance with any related issues, feel free to contact Olivia Hochschwender or any other KWW attorney.

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