NLRB: Employers Can Discipline Employees for Offensive Behavior During Protected, Concerted Activity
On July 21, 2020, the National Labor Relations Board (NLRB) issued a decisionFN1 clarifying that employers can discipline employees for engaging in deeply offensive and abusive conduct, including racially inappropriate language or language of a sexual nature, that occurs while engaging in protected, concerted activity under the National Labor Relations Act (NLRA).FN2
In its decision, the NLRB adopted the Wright Line standard for considering offensive and/or profane language in the workplace and reversed an agency judge’s ruling which held that the employer, General Motors, violated the NLRA by suspending an employee who directed the F-word at his supervisor. Under the Wright Line standard, to establish a violation of the NLRA, an employee must first prove that the protected activity was a motivating factor in the employer’s decision to discipline. If the employee meets this burden, the employer has the opportunity to establish that it would have taken the same disciplinary action even in the absence of the protected activity. As such, the NLRB held that General Motor’s decision to suspend the employee was permitted given the employee’s offensive conduct.
Previously, the NLRB applied multiple tests - depending on the type of protected activity in which the employee was engaged when the offensive behavior occurred - to determine whether abusive or harassing conduct by employees during protected, concerted activity could still result in discipline by an employer.
The NLRB will be applying the Wright Line standard retroactively to all pending matters that raise these types of claims.
Takeaway
The NLRB’s adoption of the Wright Line standard across the board provides greater protection for employers who discipline employees for offensive language in the workplace. In light of this decision, employers may want to reexamine their workplace behavior policies regarding abusive or harassing conduct going forward. Please contact the attorneys at Campbell Litigation, P.C. for assistance in reviewing workplace policies.
Footnotes:
FN1 - General Motors LLC, 14-CA-197985 369, NLRB No. 127 (2020). See https://www.nlrb.gov/case/14-CA-197985
FN2 - Section 7 of the NLRA protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.