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Abusive or Offensive Language? NLRB Says “@#$% No” to Section 7 Protection

On July 21, 2020, the National Labor Relations Board (“NLRB”) issued an important decision in General Motors, LLC and Charles Robinson, modifying the standard to be used in determining whether an employee has been unlawfully disciplined or discharged for abusive or offensive statements or conduct while engaged in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). This decision is intended to provide needed clarity and give employers more leeway in disciplining employees for egregious misconduct and upholding existing anti-discrimination laws and policies.

Collective ActionUnder the new rule, the well-established Wright Line test will be applied to all cases in which an employee is disciplined or discharged for abusive or offensive speech or conduct committed while engaged in otherwise-protected activity, such as negotiating or advocating for better employment terms and conditions. Under this test, General Counsel must first show that the employee’s protected activity was a motivating factor in the employer’s disciplinary decision. Once that burden is met, the employer may then show that it would have taken the same action absent the protected activity.

Prior to the July 21 decision, cases of offensive speech or actions made in the course of otherwise-protected Section 7 activity were evaluated using setting-specific criteria. For encounters with management, the four-factor Atlantic Steel test was used. This examined “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”[1] Employee conversations and social media posts were evaluated based on a totality of the circumstances, while picket line conduct triggered yet another test.[2] In practice, these disparate standards, and the NLRB’s previous assumption that offensive conduct committed in the course of protected activity was analytically inseparable from the protected activity, excused a great deal of speech and behavior that would otherwise not have been tolerated, thereby undermining employers’ ability to maintain respectful and civil workplaces.

The important takeaway for employers today is that the NLRB has now made it easier to address abusive or offensive conduct without running afoul of Chapter 7 protections. As employees become more vocal about injustices (real or perceived) both inside and outside the workplace, particularly on social media, this decision by the NLRB gives employers more flexibility to address abusive and offensive speech or conduct in keeping with anti-discrimination laws and the employers’ own policies. Proper and thorough documentation of employee offenses and disciplinary actions taken will of course be key in supporting employment decisions that touch upon NLRA Section 7 protections.

For assistance with your workplace policies, or training on employer best practices, contact the attorneys of McBrayer.

[1] Atlantic Steel Co., 245 NLRB 814, 816 (1979).

[2] Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985)

Claire VujanovicClaire M. Vujanovic, member with McBrayer, is located in the firm's Louisville office.  Ms. Vujanovic's practice is concentrated in the areas of labor and employment law and includes NLRA compliance, drafting and reviewing employment manuals and policies, drafting severance, non-compete and employment agreements, and counseling clients related to overtime and wage and hour regulations, laws and claims and workplace discrimination.  Ms. Vujanovic can be reached at cvujanovic@mcbrayerfirm.com or (502) 327-5400, ext. 2322.  

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