NLRB adopts employer-friendly position on discipline for abusive, offensive statements

Dive Brief:

The National Labor Relations Board (NLRB) modified in a July 21 decision the standard by which it determines whether an employee's abusive or offensive statements resulted in lawful discipline or discharge under the National Labor Relations Act (NLRA).
Under the board's decision in General Motors LLC, the NLRB General Counsel will need to prove that an employee's protected concerted activity was a motivating factor in the employer's discipline. Should this burden be met, the employer must prove that it would have taken the same level of action even in the absence of the protected activity.
The NLRB said in a statement it is essentially replacing "a variety of setting-specific standards" by adopting a new standard — the Wright Line standard. "In our view, abusive conduct that occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself," the board said in its ruling. "If the General Counsel alleges discipline was motivated by Section 7 activity and the employer contends it was motivated by abusive conduct, causation is at issue."

Dive Insight:

The board's General Motors decision is the latest in a series of related holdings that may provide clarity to an area of labor law that management-side legal sources described years ago as unclear and favoring employees.

Vulgar language in the context of the NLRA has been the subject of several NLRB decisions in recent years. In 2017, the NLRB successfully defended in federal court its decision in favor of an employee fired after publishing a Facebook post in which he called his manager a profane term and also discussed an upcoming union election. In 2019, the Board ruled in favor of a Greyhound Lines employee who was fired following a confrontation with a manager involving profanities and "aggressive physical gestures."

In February, NLRB held that Google violated the NLRA when it issued a final written warning to an employee who complained about the company's diversity policies on an internal social networking platform. The Board said that, though some of the employee's comments were "somewhat insensitive towards women and minorities in light of the conversation's context," the comments would not reasonably lead an employer to believe that "permitting such comments could lead to a hostile work environment."

In its General Motors decision, however, the Board said that abusive conduct is not protected by the NLRA and that it should be differentiated from conduct that is protected. "This is a long-overdue change in the NLRB's approach to profanity-laced tirades and other abusive conduct in the workplace," John Ring, the NLRB's chair, said in the statement. "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."

Management-side Morgan Lewis attorneys in a blog post praised the Board for moving away from its recent "problematic" standard. They called General Motors "a welcome return to common sense" in which the Board "has finally recognized that its prior standards failed to properly consider employers' legal obligations to prevent harassment and a hostile work environment, as well as to maintain order and respect at work."

The U.S. Senate voted July 29 to confirm the nominations of one board member involved in the majority of the General Motors decision, Marvin Kaplan, in addition to Democratic nominee Lauren McFerran, whose previous term on the board ended prior to the decision.