NLRB Changes Course on Abusive Workplace Language
A National Labor Relations Board ruling makes it easier for employers to discipline or fire employees who direct offensive, racist, sexist, or profane comments at management or other employees.
The board’s July 21 decision reverses recent rulings that protected certain language in the workplace.
Previously, such language was protected as “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act.
But under the new ruling, if an employer can establish that the employee would have been disciplined regardless of what caused the outburst, the discipline is lawful.
The ruling stems from one case—General Motors LLC and Charles Robinson—but also refers to three previous rulings reinstating employees who were fired for using abusive language.
Robinson, a union committee representative at a General Motors plant in Kansas City, Kansas, was suspended three times in 2017 for what management viewed as disruptive, intimidating, and threatening behavior.
The board initially upheld two of Robinson’s suspensions but overturned the third.
In 2014, the board overturned the firing of a worker who cursed out and threatened the business owner.
In 2015, it reinstated a worker fired for cursing out a manager on social media.
And in 2016, it gave a job back to a man fired for hurling racial epithets at Black workers who crossed a picket line.
The issue in Robinson’s and the other cases is whether the discipline was proper in the context of each situation.
But the board at the time applied a different standard to each case.
“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 NLRB said in a statement.
“These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination laws.”
The board will now use one standard—the Wright Line—which requires the NLRB’s general counsel to prove that the employee’s protected activity was a motivating factor in the discipline in order to shield an employee from discipline under the NLRA.
However, if that burden is met, the employer can still show that an employee who uses foul or abusive language in a non-protected activity would face similar discipline.
CBIA HR counsel Mark Soycher notes that this is an important and helpful clarification.
Employers were often forced to tolerate abusive, harassing behavior that was protected under federal labor law, but also might constitute illegal harassing, discriminatory conduct under state and federal civil rights laws.
It also highlights the value of consistency in disciplinary steps to address abusive behavior that interferes with operations, whether occurring during a dispute over terms and conditions of employment or as part of day to day interpersonal interactions between employees and management.
“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” board chair John Ring said.
“Our decision ends this unwarranted protection, eliminates the conflict between the NLRA and anti-discrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
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