NLRB Reins In Employee’s Protected Use of Abusive Language - American Society of Employers - Michael Burns

NLRB Reins In Employee’s Protected Use of Abusive Language

profanity on computer with gavelThe current National Labor Relations Board (NLRB) continues to clean up the previous Board’s unrealistic rulings by issuing a new decision again limiting employee protections when verbally abusing their bosses.

During the previous administration (Obama) the NLRB extended protections for workers that used profanity and exercised verbal abuse on management as long as the reason for it was covered by a protected concerted activity rationale (Section 7 NLRA). The previous NLRB found it hard to find worker’s words containing profanity and extreme and offensive statements so bad as to lose the National Labor Relations Act’s protections.

Not anymore. Last week the NLRB reversed one of their judge’s rulings that had protected a General Motors worker’s use of the F-bomb toward a supervisor.  That behavior was an act subject to discipline under a previous and well-known test called Wright Line.  The older and more balanced Wright Line test looked at an employee’s profanity laced verbal assault by analyzing whether the worker would have been punished if they were not engaging in protected concerted activity. Protected concerted activity is actions that seek to collectively protect (for mutual aid or protection) terms and conditions of employment, wages, and benefits.  A pretty broad range of behavior and speech to lace with bad language.

The previous NLRB had condoned behavior by employees as exemplified by a couple of extreme decisions that set a new standard in bad but protected worker behavior. In one ruling called the Pier Sixty decision, the Board made the employer rehire an employee who had cursed at his boss’ family in a (too put it lightly) ill-mannered and boorish fashion on Facebook.  In a second decision called Cooper Tire, the employer actually had to rehire a striker that used racist (yes that word!) remarks toward replacement workers as they passed a picket line. These decisions took away nearly all recourse employers would have to respond to such verbal behavior. And in the second case, it opened the employer up to equal employment discrimination liability.

In returning to the previous Wright Line decision case, the Board will look to whether the worker’s behavior in question falls into areas of protected activity such as striking or raising safety concerns.  If it does, the employer has to show they would have disciplined or fired the employee anyway (absent the protected activity).

The return to the old standard not only  gives employers control to address verbal or written statements that use “sexist, racist or other profane abusive outbursts in today’s workplace,” states Keith White, Barnes and Thornburg LLP, attorney for General Motors. It further straightens out some other inconsistent outcomes regarding bad language such as exchanges between employees, social media exchanges, and an employer’s responsibility to address breaches of federal, state, and local antidiscrimination laws.

The Cooper Standard decision that protected the use of racist verbiage under the guise the person was using it to further collective  bargaining rights put the employer in the wrong for what in any other context would have been racial discrimination. In effect, the NLRB would give a pass to worker behavior that the Equal Employment Opportunity Commission (EEOC) would have charged the employer with illegal discrimination for ignoring! As we all know, the employer has an obligation under Title VII to prevent harassment based upon race, sex, and other protected classes.

 

Source: NLRB Makes it Easier to Fire Workers Over Profane Outbursts Law 360 7/21/2020. General Motors LLC and Charles Robinson, c 14-CA-197985 and 14-CA-208242; A Return to Workplace Civility: The NLRB adopts The Wright Line Burden-Shifty Approach to Section 7 Speech. Littler LLP 7/23/2020

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