Skip to main content

Updated: Well F***, NLRB Amends Standard For Which Employers Can Lawfully Discipline or Terminate Employees For Profane Language in the Workplace


Last November, I had made note of a matter the National Labor Relations Board (“NLRB”) was considering:  Whether profane or offensive language in the workplace is protected under the National Labor Relations Act (“NLRA”).

The case before the NLRB was General Motors, LLC in which the NLRB was asked to determine whether a union official had been unlawfully terminated (in violation of the NLRA) when he threatened to “shove” an item up the backside of a supervisor and spoke in “slave like vernacular.”  At the time the case came before the NLRB, this conduct was protected under the NLRA and an employee could not therefore be disciplined or terminated for using profane or offensive language in the workplace.  However, last year, the NLRB asked for public comment on the matter.  At the end of last month, the NLRB issued its decision in the case.

Before we get to that, let us start with the basics.  The NLRA protects employees that engage in concerted activities for mutual aid and protection.  Those concerted activities include union activities, but also complaints about conditions, pay, and benefits by non union employees.  Now this is important to remembers as the NLRA protects both unionized and non unionized employees.  That means the NLRB’s decision in this case (and others) has a direct impact on both unionized and non unionized employees (and employers as well.)

In its decision, the NLRB amended the standard that was put in place during the President Barack Obama era of the NLRB.  Under that President Obama era standard, concerted activity could be legally protected even when an employee made abusive or offensive comments.  That standard assumed that abusive conduct and the protected activity were inseparable and therefore protected under the NLRA.  However, the NLRB’s decision in General Motors, LLC flips that standard and holds that offensive or abusive conduct in the course of otherwise protected activity will be analyzed under the Wright Line standard.  Wright Line stipulates that it must first be proven that the employee’s protected activity was a motivating factor in the discipline or termination.  If that burden is met, the employer must then show it would have taken the same action in the absence of the protected activity.

The takeaway here is rather straightforward:  An employer’s decision on whether to discipline or terminate an employee for abusive, unprofessional, profane, offensive, etc. language made in connection with protected concerted activity will have a stronger chance of surviving attack so long as the employer can establish the disciplinary decision was not motivated by anti-union bias.


For a copy of the NLRB’s decision:  https://apps.nlrb.gov/link/document.aspx/09031d4583194afa

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

Happening Tomorrow: Connecticut’s Minimum Wage Increases

For those employers and employees alike in Connecticut, mark your calendars as tomorrow, the minimum wage rate increases in the state from $13/hour to $14/hour. This wage hike comes after Connecticut Governor Ned Lamont had signed Public Act 19-4 into law in 2019 which progressively raised the state’s hourly minimum wage rate every year for five years.  In fact, next year, the hourly wage rate will top out at $15/hour.  Beginning in January of 2024, the hourly wage rate will be indexed to the employment cost index. For additional information:   https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2022/06-2022/Governor-Lamont-Reminds-Residents-That-Minimum-Wage-Is-Scheduled-To-Increase-on-Friday
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more