Friday, August 14, 2020

National Labor Relations Board Adopts Stricter Standard on Abusive, Harassing and Profane Employee Speech

Author: Neil Goldsmith

Under Section 7 of the National Labor Relations Act (“NLRA”), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior while not running afoul of Section 7 yet still satisfying their obligations under anti-discrimination laws? This is the dilemma that employers—and the National Labor Relations Board (“NLRB”)—have grappled with for decades. Fortunately for employers, in General Motors LLC, 369 NLRB No. 127 (Jul. 21, 2020), the NLRB recently adopted a new standard that gives them wider latitude to discipline employees who engage in abusive, harassing and profane employee speech.

Prior to General Motors, the NLRB often used the four-factor test in Atlantic Steel Co., 245 NLRB 814 (1979) to determine whether employees lost protection of the NLRA because their otherwise protected activity was accompanied by profane speech or conduct. Under Atlantic Steel, whether an employee’s remarks are protected or not depends upon a weighing of the following factors: (1) the place of the discussion leading to the outburst; (2) the subject matter of the discussion leading to the remarks; (3) the nature of the employee’s outburst and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice. 

General Motors involved an administrative law judge’s finding that an employer violated Section 7 by disciplining a worker who yelled at a supervisor that he did not “give a f*** about your cross-training,” that “we’re not going to do any f***in’ cross-training if you’re going to be acting that way,” and telling him to “shove it up [his] f***in’ a**.” The worker also “lowered his voice and mockingly acted a caricature of a slave,” and “began playing loud music from his phone that contained profane, racially charged, and sexually offensive lyrics” during a meeting.

The NLRB reversed the administrative law judge and firmly rejected the notion that abusive language must be tolerated in furtherance of Section 7. The NLRB “read nothing in the Act as intending any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, [it] w[ould] not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.”

The NLRB further held that the burden-shifting approach of Wright Line, 251 NLRB 1083 (1980), governs cases of abusive speech. Under Wright Line, the NLRB’s general counsel must initially show that: (1) the employee engaged in Section 7 activity; (2) the employer knew of that activity; and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. If the general counsel makes this showing, the employer must show that it would have taken the same action even in the absence of Section 7 activity. But if the evidence “establishes that the reasons given for the [employer’s] action are pretextual—that is, either false or not in fact relied upon—the [employer] fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct and thus there is no need to perform the second part of the Wright Line analysis.”

The Wright Line test is essentially identical to the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is routinely used in employment discrimination cases. In adopting this framework, the NLRB made clear the new standard is designed to “honor[] the employer’s right to maintain order and respect,” to “avoid potential conflicts with antidiscrimination laws,” and to make clear that the NLRB “will no longer stand in the way of employers’ legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.”

This decision is a positive development for employers who no longer have to worry about whether they will face liability under the NLRA for disciplining employees who engage in protected activity that is profane, abusive, racist, or harassing. As long as an employer can show it would have disciplined the employee absent the protected activity, it should prevail before the NLRB. 



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