Mike is the Chair of Obermayer’s Labor Relations and Employment Law Department and a member of Obermayer’s Management Committee. Mike is an accomplished attorney known for his tireless advocacy on behalf of...Read More by Author
New NLRB Decision Overhauls Standard for Offensive Employee Outbursts
Prior to Tuesday, offensive employee conduct committed in the course of otherwise protected activity under the National Labor Relations Act (the “Act”) was more often than not shielded from employer discipline. However, following the National Labor Relations Board’s (“NLRB” or the “Board”) decision on July 21, 2020 in General Motors, LLC ¹, the Board severely clamped down on employees’ ability to engage in such conduct in the future without consequence.
Section 7 of the Act protects employees’ rights to complain about their terms and conditions of employment. Generally, employees had been granted some leeway with respect to outbursts that otherwise would be considered “unprofessional” or “disrespectful” because, as the Board had previously explained, the language of the industrial workplace “is not the language of polite ‘society,’” and the protections afforded by Section 7 “would be meaningless were [the Board] not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” Plaza Auto Center, 360 NLRB 972, 978 (2014).
In a number of rulings over the past few years, the Obama-era Board ruled that certain abusive speech, deemed by employers to be patently offensive, retained its protected status and, therefore, determined that the employees who engaged in such behavior and were discharged should be returned to work with full back pay. For example, in Plaza Auto Center, the Board found an employee did not lose protection of the Act despite berating the owner of the car dealership at which he was employed, calling the owner a “f*****g mother f*****g [sic],” a “f*****g crook,” and “an a*****e.” Similarly, in Pier Sixty, LLC, 362 NLRB 505 (2015), enforced 855 F.3d 115 (2d Cir. 2017), an employee who was upset about the way he was spoken to by his supervisor was found not to lose the protection of the Act after he posted the following message on Facebook during a work break, “[the supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Additionally, in Cooper Tire, 363 NLRB No. 194 (2016), enforced 866 F.3d 885 (8th Cir. 2017), an employee was found to remain within the protection of the Act despite his picket line conduct even where he directed appallingly offensive racist comments to African American replacement workers.
In contrast, in General Motors, the Board recognized that previously allowing abusive conduct as a “reality of industrial life” when there are disputes over wages, hours, and working conditions was wrong, overstated, and has largely swallowed employers’ parallel obligations to maintain order, respect, and a workplace free from invidious discrimination. The Board further determined that there was nothing in the Act that intentioned any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, “[the Board would] not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.”
To strike the proper balance in protecting employees’ rights under the Act, the Board modified the standard by which it will now judge whether employees were lawfully disciplined after making offensive and/or abusive statements when such statements were made in conjunction with protected activities. Prior to Tuesday’s decision, the Board utilized a number of different standards, whereby the standard used varied dependent upon the context of the situation (i.e., whether the statements were made to management; whether the statements were made on social media, or whether the statements were made “on the picket line”). In favor of uniformity, equity, and reliability, all of those prior standards have been replaced by what is known as the Wright Line standard, which will now be employed in every disciplinary case involving such conduct—regardless of the context of the conduct at-issue. The Wright Line standard has long been used by the NLRB in cases where an employer punished a worker who later alleged that his punishment was a result of having engaged in protected action, including supporting the union and/or raising concerns about wages or other terms and conditions of employment.
Pursuant to General Motors, the new standard to be used in these scenarios dictates that the employee must first prove that their protected activity was a motivating factor in the discipline that the employer rendered for that employee’s offensive conduct. If that initial burden is met, the burden then shifts over to the employer, who may escape liability if it can prove that it would have taken the same action even in the absence of the protected activity alleged. This new scheme is a markedly easier and more employer-friendly standard. Employers can make these types of showings by, for instance, offering examples of consistent discipline of other employees who engaged in similar offensive conduct to that of the conduct at-issue.
With this new decision, the NLRB has rested more authority back in employers’ hands to punish employees who have made offensive remarks, even when such statements or conduct were committed during their participation in concerted protected activities. For more details or questions on this recent decision, please do not hesitate to reach out to an Obermayer Labor & Employment attorney for more information.
 14-CA-197985 369 NLRB No. 127 (2020)
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.