Takeaways

The Board’s new standard will allow employers more predictability and discretion to discipline and discharge employees who use profanity or other abusive language or conduct while engaging in otherwise protected concerted activity.
Employers must remain aware that the NLRA protects both unionized and non-unionized employees’ rights to engage in protected, concerted activity related to their wages, hours, or any other term or condition of their employment.

Despite this broadened standard, employers should still be cautious about disciplining or discharging employees who engage in protected concerted activity regarding the terms and conditions of their employment, which can include discussions of COVID-related concerns and race relations, along with other emotionally, politically, or culturally sensitive topics. The National Labor Relations Board (NLRB) has adopted a new standard that will allow employers to more readily discipline employees who have made abusive statements, even when connected to otherwise protected, concerted activity. Under the prior standard, the NLRB had found that employers had engaged in an unfair labor practices on various occasions when they discharged employees who had used profanity against managers or shouted racial slurs while also engaging in activities that are protected by Section 7 of the National Labor Relations Act (NLRA).

Although many non-unionized employers may be unfamiliar with the provisions of the NLRA, the Act covers and provides rights to nonsupervisory employees regardless of whether the employees belong to a labor union. Section 7 gives nonsupervisory employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. Activity is considered “concerted” if it is engaged in with or on the authority of other employees, including where a single employee seeks to initiate group action or brings a group complaint to the attention of management. If the activity crosses the line into misconduct, however, it may no longer be protected. The July 21, 2020, decision in General Motors and Charles Robinson clarified the standard that the NLRB will use on a going-forward basis to determine when an employer may lawfully discharge an employee for making an abusive statement while otherwise engaging in protected, concerted activity.

For outbursts against management in the workplace, the NLRB had previously applied a four-factor test from its Atlantic Steel decision, under which the Board considered “(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.” Under other precedent, the NLRB examined the totality of the circumstances in cases involving abusive remarks on social media posts or involving conversations among employees in the workplace. In the General Motors decision, the NLRB faulted past Board decisions for applying these standards to “assum[e] that the abusive conduct and the Section 7 activity are analytically inseparable.” These old standards had resulted in unfair labor practice findings—and reinstatement orders—in cases in which employers had discharged employees for (1) unleashing a barrage of profane ad hominem attacks against the business’s owner during a meeting in which the employee also raised concerted complaints about compensation, (2) making “profane and vituperative” ad hominem attacks against a manager in a social media post that also promoted voting for union representation, and (3) shouting racial slurs while picketing.

In the General Motors decision, the NLRB criticized the prior standards for “fail[ing] to yield predictable, equitable results,” and, in some instances, “conflict[ing] alarmingly with employers’ obligations under federal, state, and local antidiscrimination laws.” This inconsistency created uncertainty for employers who were unable to tell with any accuracy whether their actions were lawful.

Based on these concerns, the NLRB announced a new standard in General Motors—in essence, expanding its use of the Wright Line standard to evaluate all situations in which an employer disciplines an employee for making abusive statements while engaging in Section 7 activities.

 Under the Wright Line standard, an employee unfair labor practice charge based on discharge or discipline for engaging in protected conduct requires that the party challenging the adverse action establish the following three elements:

  1. The employee engaged in Section 7 activity.
  2. The employer knew of that activity.
  3. A causal connection exists between the Section 7 activity and the adverse action.

If all three elements are met, then the employer must prove it would have taken the same disciplinary action if the employee had not engaged in a protected activity. Applying the Wright Line test, the NLRB will find an unfair labor practice if “the [employee] shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity.” In short, engaging in Section 7 activity does not insulate employees from “nondiscriminatory discipline” under the General Motors standard, but “it is unlawful for employers to target employees who engage in Section 7 activity and subject them to discipline that would not have occurred but for that protected activity.”

The approach adopted by the Board in General Motors gives employers more leeway to discipline employees who make abusive comments, but employers should still be mindful of the added protections for employees engaged in Section 7 activities. Section 7 still protects employees who speak out about their wages, hours, or other terms and conditions of their employment to their supervisors and their coworkers, in the workplace or on social media. Although the General Motors decision allows employers to fire employees for making abusive comments, it does not allow employers to discharge employees for non-abusive statements, nor is it likely to allow employers to selectively discharge employees for making abusive statements only when related to Section 7 activity (i.e., disparately enforcing a no-profanity policy solely against union supporters).

Considering current events, it is even more crucial for employers to understand when employee statements may qualify as protected activity under the NLRA. Nonsupervisory employees who make critical comments about managers’ practices or an employer’s policies in returning to onsite work amid the COVID-19 pandemic may be viewed as troublemakers or not as team players by management—but discussions of workplace health and safety are core areas of protected concerted activity. In addition, the federal Occupational Safety and Health Act prohibits retaliation for raising occupational health and safety concerns.

 Similarly, as protests for racial justice continue and employees press their employers to support antiracism efforts, employers must tread carefully in seeking to suppress such activities, including when employees wear clothing in the workplace with slogans supporting the Black Lives Matter movement. In these kinds of situations, employers should consult with labor and employment counsel before implementing any policies or taking any disciplinary action against employees related to such activities.

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