Announcing a new standard for determining whether employees lose the protection of the Act by making abusive or offensive comments, including racist, sexist, or profane remarks, the National Labor Relations Board (NLRB) has made it clear that Section 7 of the National Labor Relations Act will not excuse such conduct and that employers can lawfully discipline or discharge employees who engage in it.
The Board had used three different approaches when reviewing offensive comments, depending on the situation—be it an outburst at the boss, social media comments, or heckling from the picket line—but these “setting specific” approaches conflict with antidiscrimination laws, the Board explained. The most common and time-worn of these tests is Atlantic Steel, used when employee outbursts are directed at management.
The tests set forth in Atlantic Steel and other precedents, the Board noted, reflected the view that employees should be afforded some leeway for impulsive (and unseemly) behavior when engaging in activities protected under the Act. But in the NLRB’s view, these rulings are “out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.” And they all too often meant that employees would get a pass for behavior that is “deeply offensive.” This four-factor framework, first adopted in 1979, “has failed to be an effective legal standard,” the Board said, scrapping it.
A single standard will now apply: Wright Line, the familiar burden-shifting approach used in NLRA discrimination cases (General Motors, LLC, July 21, 2020).
“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. 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.”
In adopting Wright Line in this context, the General Counsel will have to show that Section 7 activity was a motivating factor in the employee’s discipline or discharge, at which point the burden shifts to the employer to prove it would have disciplined or terminated the employee even absent the protected conduct. The employer can do so by presenting evidence that it has consistently disciplined other employees for engaging in similar abusive or offensive conduct.
In the past, employers were often put between a rock and a hard place: allow harassing or profane speech in the workplace and risk violating antiharassment laws, or discipline employees who violate acceptable workplace norms and face a potential unfair labor practice charge under the NLRA. Now, as a result of this NLRB decision, employers are more empowered to act on obscene, racist, and sexually harassing speech to discipline or terminate employees without fear of simultaneously violating Section 7. This decision is seen as a positive development for employers as they address workplace conduct in these exceedingly challenging times.
Source: CCH/Wolters Kluwer