The National Labor Relations Board (the "Board") issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the "Act").
Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other interactions between employees, referred to as the "totality of circumstances." Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee's Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer's obligations under federal, state and local discrimination laws.
The Board has now clearly and unequivocally determined that going forward these cases will be decided using the familiar Wright Line standard. Under Wright Line, the Board must establish "a causal connection between the employer's anti-union animus and the specific adverse employment action on the part of the decision maker." If the general counsel does not demonstrate that protected speech or conduct was a motivating factor in the adverse employment decision, or if the general counsel makes this showing but the employer demonstrates that it would have made the same decision for abusive speech or conduct even in the absence of protected activity, the employer should be found within its rights to take this adverse action.
The decision in General Motors is important because employers have struggled with disciplining employees who engaged in abusive or hostile behavior in the context of concerted protected activity (e.g., employee yelling and using profanity at a supervisor - what might otherwise be considered to be insubordination or hostile/threatening conduct in violation of the employer's policies - in the course of complaining about working conditions). As NLRB Chairman Ring said, "This is a long-overdue change in the NLRB's approach to profanity-laced tirades and other abusive conduct in the workplace. For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today."
The Board's decision is also timely in light of the current racial justice movement, upcoming Presidential election and COVID-19 pandemic, as many employees are taking to social media to voice their opinions and positions on these topics. Now may be a good time to remind employees of your company's policies on discrimination and harassment and social media activity.
This article is presented for informational purposes only and is not intended to constitute legal advice.