NLRB Changes Legal Standard On Discipline For Offensive Or Abusive Outbursts, Again

Volume: 22 | Issue: 17
May 4, 2023

The National Labor Relations Board (NLRB or Board) has again changed course on the legal standard it uses to determine whether discipline for profane outbursts or offensive statements violates the National Labor Relations Act (NLRA or Act). This issue arises when an employee engages in conduct protected by Section 7 of the NLRA, e.g., complaining about terms and conditions of employment, but uses unprofessional, abusive, profane or offensive language. In some instances, the Board will find that an employee’s conduct is so abusive or profane that it loses the protection of the NLRA such that the employee could be disciplined without violating the Act.

In 2020, the Trump NLRB adopted a new standard on this question in the case of General Motors LLC which gave employers more leeway in disciplining employees for profane or offensive behavior. This was welcome news for employers who could rely on the new standard to discipline those who made threats of violence or harassing statements in the context of Section 7 activity.

Unfortunately, the Biden NLRB has now thrown out the standard adopted in General Motors and will return to its prior, more restrictive standard.  In the past, this standard has been used to protect a variety of shocking conduct, including: an employee who profanely attacked and threatened supervisors in the workplace; an employee who posted social media attacks against a manager and his family; an employee who shouted racist epithets at other employees; and an employee who walked a picket line holding a sign that contained a vulgar and sexually harassing statement about a female, non-striking employee. The NLRB’s ruling on this issue was announced in the case of Lion Elastomers LLC on May 1. The lone Republican member of the Board, Marvin Kaplan, disagreed with the decision.

The NLRA provides all employees with the right to join together to improve their terms and conditions of employment – even when they are doing so independent of a union or union organizing campaign. As such, all employers should carefully consider the full context of employe conduct before deciding whether and how to discipline an employee. Employers should proceed with caution if an employee’s misconduct occurs in relation to activity that is protected by the NLRA, with the understanding that the definition of protected conduct keeps getting broader under the Biden Board.

The bottom line for employers? If an employee’s misconduct occurs in relation to conduct that is possibly protected by the NLRA, seek legal advice before making your discipline decision. KZA’s attorneys are well versed in labor law and are always available to assist you with these complicated decisions. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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