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Rules tighten on protected speech in workplace

Employees who spew the F-bomb, make sexually unacceptable remarks or racist comments at work – even involving union activities – will no longer enjoy the same protections under the National Labor Relations Act they once did.

The changes are based on the National Labor Relations Board issuing a recent decision in General Motors LLC, 369 NLRB, which changes the standards for whether employees have been lawfully disciplined or discharged for offensive behavior.

Prior to the change, the board had three setting-specific tests for determining what language was protected by the act. Language used during what are considered protected activities could not be easily addressed through discipline or firing.

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Fred Braid
Fred Braid

Holland & Knight attorney Fred Braid, an expert in this realm, said until now, a lot of weight was given to whether protected activity — union negotiations or pickets, for example — was under way at the time the offensive behavior took place. That will no longer be the case, he said. “This will affect both union and non-union employees.”

In a news release on the new decision, the NLRB stated, “while these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the act, they often resulted in reinstatement of employees discharged for deeply offensive conduct.” Such decisions were not in line with most workplace norms, it said.

In the General Motors case, an employee berated his manager in front of others, used racial slurs and engaged in other insubordinate behavior on several occasions.

Board Chairman John F. Ring, in commenting on the decision, said “this is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace.” The board has for too long protected employees who have engaged in racist, obscene and sexually harassing speech, which most workplaces do not tolerate, he said.

“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,” Ring said.

Pittsburgh-based lawyer Michael Pavlick, with the global law firm of K&L Gates, said the General Motors ruling clarifies a lot for employers without removing protections for employees engaged in protected activities.

Michael Pavlick

“You can now say, ‘you do this and you’re done.’ That is helpful from an employer’s standpoint,” said Pavlick, who has done work on traditional labor practices for nearly 30 years. “I don’t think this does anything to decrease the protected activity. It merely says the employee can go too far. There is now a limit. That was the biggest concern. These racially charged comments, it puts everybody in a bad position. In this instance (General Motors), the company felt the employee pushed it too far, but without a standard to follow, it created a lot of uncertainty.”

The test will now be conducted using the NLRB’s Wright Line case, a precedent set 40 years ago.  Section 7 protects employees’ right to engage in “concerted activities for the purpose of collective bargaining.” For years, it has been construed as entitling employees to use “intemperate, abusive, or insulting language without fear of restraint or penalty if they believed such rhetoric to be an effective means to make their point.” 

That left employers in a lurch when it came time to discipline an employee for abusive speech, even if that speech violated other federal laws prohibiting harassment and discrimination.

“The Wright Line is really straightforward,” Pavlick said. ‘It allows the employer to show they would have made the same decision, regardless” of whether a protected activity was under way.

In the General Motors case, “the employee was complaining and cursing his supervisor out in front of other employees,” Braid said. “The NLRB has simplified this by adopting its Wright Line standard, used for many years whenever an employee was discharged where the allegation was that they were engaged in protected activity or for speaking out. The three tests being replaced didn’t really separate and gave too much weight to the fact the employee was engaged in protective activity and did not separate out the abusive or obnoxious behavior.”

Under Wright Line, the general counsel of the board bears the burden of demonstrating that even though an employee was engaged in protected activity, his or her behavior would not have been tolerated by the company at any time.

The board noted that its tests in the past have been indifferent to employer obligations under other laws – such as for sexual harassment or discrimination – or even its own company policies. It left little room for an employer to attempt to discipline an employee, for example, if racial epithets were thrown on the picket line or an employee used the F-bomb in a social media posts referring to management or complaining about pay. 

This new ruling indicates that the NLRB will no longer tolerate such behavior.

“Under the Wright Line standard, which will now apply in all situations, the test is wherever there is protected activity accompanied by abuse, insubordination profanity or harassing behavior … the employer can come forward and say ‘it doesn’t matter that they were engaged in protected activity, we would have done this anyway.’  The rule is about keeping a civil workplace.” Braid said. “The employee’s action would be cause for termination by itself.”The question becomes what the motivating factor behind the discipline is, Braid said. “Under Wright Line, you evaluate both sides.”