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Can an employee's hostile, abusive, or offensive speech actually be protected and, if so, when?

ABSTRACT: Emphasizing that disputes over wages, hours, and working conditions are among the disputes most likely to provoke strong responses from employees, the NLRB once again broadens protection for an employee’s use of hostile, offensive and abusive conduct while engaged in Section 7 activity.

Few things in life are certain. But when an administration changes from Republican to Democratic, or vice versa, at least one thing is certain: the pendulum will swing, and NLRB case law will change.

In a 2020 decision, the NLRB changed the way it traditionally evaluated an employee’s hostile or abusive conduct that occurs during protected Section 7 activity and that leads to the employee’s discipline. In General Motors, 369 NLRB 127 (2020), the Board decided it would no longer apply long-established “setting-specific” standards to assess whether an employer wrongfully disciplined an employee who used offensive language or engaged in abusive conduct in connection with Section 7 protected activity. Instead, the General Motors Board determined the proper focus would be on the motive of the employer for taking the adverse employment action against the employee, adopting the Wright Line motive-focused standard. See Wright Line, 251 NLRB 1083 (1980). In other words, was the employee disciplined because the employer believed in good faith he used offensive language or abusive conduct in the workplace or was he actually disciplined because he was engaging in activity protected by Section 7?

In adopting the Wright Line standard, the General Motors Board specifically overruled: (1) the four-factor Atlantic Steel test, 245 NLRB 814 (1979), which governed employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test announced in Desert Springs Hospital Medical Center, 363 NLRB 1824, 1839 fn. 3 (2016) and Pier Sixty, LLC, 362 NLRB No. 59 (2015), which governed social-media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings, 268 NLRB No. 173 (1984), standard, which governed picket-line conduct.

Now, with the recent Lion Elastomers, LLC II, 372 NLRD No. 83 (May 1, 2023), decision, the NLRB has once again restored these traditional “setting-specific” standards, overruling the General Motors’ decision. Under each of these three standards, offensive or hostile conduct that occurs during the course of Section 7 activity must be evaluated as part of that activity and not as if it occurred in the normal workplace context. https://apps.nlrb.gov/link/document.aspx/09031d4583a42c17. The Board found the General Motors motive-focused Wright Line standard did not give enough consideration to employees’ statutory rights and gave too much consideration to the interests of employers.

A key theme throughout the Lion Elastomers decision is that protected disputes over wages, hours, and working conditions are often going to be heated. That is to be expected. For this reason and considering the purpose of the Act, if the Board is going to potentially sanction an employer’s discipline of an employee due to the employee’s perceived misconduct, the Board has to first consider that misconduct (under the appropriate standard) in light of the foreseeable impact or chilling effect the discipline might have on the exercise of Section 7 rights.

The Board criticized the General Motors decision on the basis that it made the employer the arbiter of whether an employee’s conduct retains or loses the protection of Section 7. The Board expressed its concern that advancing “civility” as a statutory goal would give employer’s “dangerous discretionary power” over employees who exercised their statutory rights under the NLRA. Instead, it declared it is the role of the Board to evaluate and decide whether an employee retains or loses the protection of the Act based on his or her alleged misconduct, irrespective of the employer’s motive for the discipline.

The Board rejected the concerns the General Motors Board raised about the potential conflict between the “setting-specific” standards and an employer’s obligations under the Federal anti-discrimination statutes. The Board noted that the behavior at issue commonly equates to no more than offhand comments and isolated incidents, which unless extremely severe, are generally legally insufficient to create liability under the anti-discrimination laws. Further, the Board noted that it is required to accommodate other Federal statutes, just as those statutes must accommodate the NLRA. So, if the behavior at issue rises to a questionable level under the anti-discrimination laws, that is something the Board certainly is able to consider when assessing whether the employer’s discipline is lawful. As such, the Lion Elastomer Board found the “setting-specific” standards do not prevent the Board from complying with the Federal anti-discrimination statutes.

While acknowledging that employers have a legitimate interest in maintaining order and respect in the workplace, the Board held that it is tasked with balancing that interest against employees’ Section 7 rights. In the end, the crux of the Board’s decision is that it is Board’s job to referee the exercise of protected activity under the Act, not employers. 

Key Takeaway

Surely, this decision will cause employers to suffer some significant heartburn, feeling as if they are damned if they take appropriate consistent corrective action against abusive or offensive conduct of employees, and damned if they do not take such action, recognizing the threat other litigation may ensue for failing to act. 

Remember Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. This includes the right to discuss the terms and conditions of employment with each other, to disagree with the employer on these issues, to protest, and, quite frankly, to speak harshly in discussing or asserting their position.

If an employee is engaged in protected activity under Section 7 and also uses hostile, abusive, or offensive language or conduct, which you believe warrants discipline, before making a swift decision, first consult with an experienced employment attorney, who can help navigate these issues, weighing the appropriate setting-specific factors and hopefully mitigating the risks involved.