NLRB Gives Employers More Leeway to Fire Workers for Profane Outbursts

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The National Labor Relations Board (NLRB) gave employers more flexibility to discipline or fire employees for abusive conduct when they are engaging in otherwise protected activity under federal labor law.

In recent years, the NLRB has safeguarded employee statements that included profane, racist and sexist remarks if they were made while employees were participating in protected activity under the National Labor Relations Act (NLRA). For example, the board said a profane social media rant and racist remarks made while picketing were shielded by the NLRA.

In a decision on July 21, the board issued a new standard requiring the NLRB's general counsel to first prove that an employee's protected activity was a motivating factor for disciplinary action. "If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct," the board said.

"This is a long-overdue change in the NLRB's approach to profanity-laced tirades and other abusive conduct in the workplace," noted NLRB Chairman John Ring.

The Society for Human Resource Management (SHRM) supports the decision. "This is an important victory for healthy workplace cultures and workplace equity, putting behind us a line of labor law cases that protected unprofessional and inappropriate behavior," said Emily M. Dickens, SHRM's corporate secretary, chief of staff and head of Government Affairs. "Proper civility, respect, inclusion and tolerance are core values of the modern workforce. Employees simply cannot, and should not, be allowed to use abusive and profane language under the guise of 'concerted activity' and find themselves protected by federal labor law."

Dickens added, "SHRM looks forward to working with both employers and workers of all backgrounds to build on this critical NLRB decision and further our shared goals of workplace inclusion and diversity."

The AFL-CIO and other organized labor groups had urged the board to retain the prior standards. They argued that "speech protected by [the NLRA] can be coarse because of the passions such topics inflame and that it should not be censored or hindered," according to the decision.

Conflict with Anti-Discrimination Laws

The NLRB's new bright-line test replaces several standards that applied in different circumstances. One prior standard applied to workers' interactions with management, another applied to postings on social media and conversations between employees, and a third standard covered offensive conduct on the picket line.

"While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the [NLRA], they often resulted in reinstatement of employees discharged for deeply offensive conduct," the board said in a July 21 announcement. "These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination law."

The Equal Employment Opportunity Commission (EEOC) enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.

Labor groups argued that the prior standards didn't conflict with those anti-discrimination laws because single instances of profane speech rarely create a legally actionable hostile-work-environment claim under those laws.

However, Ruthie Goodboe, an attorney with Ogletree Deakins in Pittsburgh, said that the board's prior standards often led employers to accept "one of two equally objectionable alternatives": Employers either had to risk an unfair labor practice charge under the NLRA or an EEOC complaint under anti-discrimination statutes. 

Charlie Morgan, an attorney with Alston & Bird in Atlanta, said the prior standard didn't consider the realities of the modern workforce—the need to take immediate, corrective action in response to harassment, threats and discriminatory behavior.

"The new standard better recognizes the need to stop such misconduct and allows employers to make better decisions in responding promptly and appropriately to misconduct in the workplace," he said.

Even if the employer was aware of a worker's participation in NLRA-protected activity, and there is some connection between the protected activity and the discipline, the new ruling allows an employer to discipline a worker if it would have taken the same action in the absence of protected activity.

"From a practical perspective, the new decision means employers will not be forced to prioritize which laws they will attempt to comply with and instead allows them to communicate and apply their policies in a predictable and consistent way," Goodboe said. "Most importantly, the ruling promotes a work environment that balances NLRA Section 7 rights [to participate in concerted activity] with the rights of all employees to be free from discrimination, harassment and threats of a violence."

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