In a decision issued on July 21, 2020, the National Labor Relations Board (the “Board”) modified its standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements — including profane, racist and sexually unacceptable remarks — in the course of activity otherwise protected under the National Labor Relations Act (the “Act”).
Previously, the Board applied varying standards, depending on individual case facts, to determine whether or not an employer could discipline an employee for making an abusive or offensive statement while also participating in activity protected by the Act. There were separate standards for:
These previous tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act. However, in application, the various standards often required employers to reinstate discharged employees despite deeply offensive conduct. The Board determined that these decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.
As a result, the Board has changed course and will now apply its familiar “Wright Line” standard in cases involving abusive or offensive statements made in the course of otherwise protected conduct. The Board has long used this standard in mixed-motive cases. Under Wright Line, the General Counsel of the Board must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing prior consistent discipline of other employees who engaged in similar abusive or offensive conduct.
The Board’s decision is extremely important for employers faced with situations in which an employee exercises his or her protected rights (for example by picketing or complaining to management about work policies) but at the same time, using abusive or offensive language directed at co-workers or management. However, while the Board’s decision does make it easier for an employer to discipline an employee in these circumstances, we caution that employers should seek legal advice in all such situations.
Companies confronted with these issues should consult Daniel Sobol, Joseph Hofmann, Brandon Shemtob or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
