NLRB Seeks to Clarify When Workers’ Offensive Speech Crosses the Line

Nov 6, 2019 | Blog
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There is perhaps no great shortage of disgruntled employees in the world and subsequently no great shortage of employees who’d exchange a few choice words with a disliked boss if granted impunity. Although some employees may feel like cursing out their employer from time to time, the repercussions of such an outburst are often enough to keep impulses for offensive speech down to a harmless grumble. However, this issue of offensive outbursts by employees has repeatedly surfaced across a variety of labor and employment dispute cases over the past five years. The problem is this: What happens when an employee directs profane speech towards a superior and that speech is protected by federal labor law?

On Thursday, September 5th, the National Labor Relations Board (NLRB) invited businesses to weigh in on this very topic. The Board issued a notice and invitation to file briefs giving feedback regarding at what point an employee’s offensive speech should warrant the loss of protection under federal labor law. Currently, the National Labor Relations Act (NLRA) protects workers’ rights “to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In past cases, this clause has been used to protect the free speech of workers—offensive or otherwise—when it’s made in the context of labor disputes or union organizing. This means that employers cannot retaliate against employees who may direct offensive language or racially/sexually charged comments towards them in such circumstances.

The call for amicus briefs comes after an NLRB judge found that General Motors violated the NLRA by suspending a worker engaged in union activity—a worker who had cursed out a manager regarding an overtime issue at a meeting. GM appealed the judge’s finding, asking the NLRB to also review three similar past cases in which offensive employee language was also protected under the NLRA: Plaza Auto, Pier Sixty, and Cooper Tire.

In these types of cases, the NLRB typically employs a four-pronged test (dubbed the “Atlantic Steel” test) in order to determine if an employee’s outburst is severe enough to lose the protection of the NLRA. The test takes into consideration the following four factors:

  1. the place of the discussion
  2. the subject matter of the discussion
  3. the nature of the employee’s outburst
  4. whether the outburst was, in any way, provoked by the employer’s unfair labor practices

However, in response to criticism by many companies who argue that these criteria are granting too much leniency for profane and racially/sexually charged language, the NLRB is rethinking its stance. In its call for amicus briefs, the Board stated:

“Mindful of this criticism, the board now invites the parties and interested amici to file briefs to aid the board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who utters them the protection of the act.”

The Board is also asking for feedback regarding what, if any, other circumstantial factors should be taken into consideration in these cases, such as whether the workplace typically tolerates profanity or if the offensive speech is uttered on a picket-line.

Another challenge facing the NLRB is how to reconcile the NLRA’s provisions for protected speech with the anti-discrimination laws set forth in Title VII of the Civil Rights Act of 1964. Under the current laws, an employer risks penalty under the NLRA if they punish racially/sexually charged language related to union organizing activity. However, not addressing this same language puts the employer in danger of violating workplace anti-discrimination laws. As it stands, employers can very feasibly find themselves in a catch-22, caught between two conflicting pieces of legislation.

The NLRB hopes that its call for feedback regarding the degree to which the NLRA should protect employees’ offensive outbursts will help to resolve these various issues and create a more balanced, consistent framework going forward.

If you have any further questions regarding federal labor law or employment and labor disputes, please contact Philip Mortensen or Scott Grubin.