The National Labor Relations Board (“NLRB” or “Board”) has revised its standard for determining the lawfulness of an employer’s discipline or discharge of an employee who has engaged in abusive or offensive conduct —including making profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (“NLRA”).
In its July 21 decision in the General Motors LLC case, the Board replaced a variety of standards applied for different sets of circumstances with a single test. The chosen test was an existing standard known as the Wright Line test, long used by the Board to distinguish between lawful discipline or discharge and unlawful retaliation for protected (usually union-related) activity. Under this approach, the Board will find that discipline for abusive conduct committed in the course of protected activity only when the NLRB’s general counsel has proven that the protected activity was a motivating factor in the discipline and the employer has failed to prove that it would have taken the same disciplinary action even in the absence of the protected activity (e.g., by showing consistent discipline of other employees who engaged in similar conduct). This analysis will apply regardless of whether the employee’s abusive or offensive statements were made on social media, on a picket line, to a manager, or under any other circumstances.
While the Board has acknowledged that employees should be permitted some leeway for impulsive behavior when engaging in NLRA-protected activities, the prior tests often resulted in reinstatement of employees who were discharged for deeply offensive conduct. The current Board found that decisions applying those tests were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law. The present new approach “honors the employer’s right to maintain order and respect” while avoiding “potential conflicts with antidiscrimination laws,” said the Board in its decision.
The Board requested briefing in the case in September 2019. The Coalition for a Democratic Workplace, of which AGC of America is a member, submitted an amicus brief asking the Board to change its approach in such cases. Among other things, the brief argued that the Board should abandon standards that require employers to tolerate insubordination, bullying, incivility, or sexually or racially offensive language. The Board agreed.
“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” stated NLRB Chairman John Ring in a new release about the case. “For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today,” he added. “Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”