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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

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