Abusive Speech is No Longer Protected at Work

In July, the National Labor Relations Board (NLRB) modified the standard used to determine whether an employer can lawfully discipline an employee for using abusive language, in the context of activity that might otherwise have been protected under the National Labor Relations Act (NLRA). The change in direction is being hailed as sensible and long-overdue. The NLRB decision makes it easier for an employer to discipline or even fire employees for abusive speech, including racist comments, sexist speech, offensive remarks, and profane language, which was considered protected concerted activity under the previous NLRB. This article will address how the NLRB formerly interpreted protected concerted activity to include abusive language, the recent case that resulted in a change of direction, and what this development means for employers.

Protected Concerted Activity and Abusive Speech

Section 7 of the National Labor Relations Act protects all employees (unionized or not) to participate in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Before the July decision, Section 7 was interpreted by the NLRB to entitle employees to use abusive language without fear of consequences to make their point. Consequently, the fine line between Section 7 protections and antidiscrimination laws like Title VII of the Civil Rights Act of 1974 (Title VII), which protects against discrimination in the workplace, were becoming increasingly muddled. Under the previous precedent, the scale was often tipped in favor of protecting abusive speech in the workplace. Practically speaking, these conflicting policies put the employer in a difficult position. If the employer ignored abusive speech, it could be disciplined for permitting discriminatory behavior, but if it disciplined employees for protected abusive speech it could be committing unfair labor practice under the NLRA.

General Motors LLC

In General Motors LLC,¹ the NLRB returned to the Wright Line² test for determining whether employers can discipline abusive conduct. Before this decision, the Board used several different confusing standards based on the details of each situation to shield employees from discipline for misconduct if they did it in the context of Section 7 protected activities. Over the years, the Board has determined that misconduct was protected by Section 7 even when it generally would have resulted in discipline or termination, for example, making racist remarks towards an African American employee, screaming obscenities to a manager, or directing sexist statements towards female coworkers. The Board was clear in this case that abusive speech is not protected by the NLRA and is different from speech that is protected.

General Motors LLC involved a union employee who made offensive and racial remarks to management during bargaining meetings. GM suspended the employee for the misconduct, and the employee alleged that the discipline was a violation of Section 7 of the NLRA.

In this case, the NLRB returned to the Wright Line burden-shifting standard. Under this analysis, the general counsel must demonstrate that (1) an employee was involved in Section 7 activity, (2) the employer knew of the Section 7 activity, and (3) the employer had animus against the section 7 activity. Once the initial burden is shown, then the burden of persuasion shifts to the employer to demonstrate that it would have taken the same action whether or not there was Section 7 activity.

The NLRB sent the case back to the administrative law judge for reconsideration under the Wright Line test. Additionally, the Board held that the Wright Line standard will be applied retroactively to all pending cases that involve these types of claims.

Applicability to Employers

The NLRB’s shift to the Wright Line standard empowers employers to comply with their legal obligations to prevent a hostile work environment. This ruling eliminates the conflict that previously existed between the NLRA and antidiscrimination law. The decision also demonstrates that expectations for employee’s conduct in the workplace have changed. Employers should be prepared to demonstrate that any disciplinary action taken is in line with their other expectations for workplace behavior and does not target Section 7 activity.

Conclusion

Ultimately, this ruling gives employers more tools to deal with abusive and discriminatory behavior without violating Section 7. If your organization is managing employee misconduct and is unsure about how this change in law impacts your specific situation, contact experienced counsel to ensure legal compliance.

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¹ 14-CA-197985, 369 NLRB No. 127.

² 251 NLRB 1083 (1980).

Featured Image by Rebecca Sidebotham.