Employers are often surprised to learn that federal labor law grants employees significant protection to make profane or offensive statements, or engage in other offensive conduct, when they are engaging in “protected concerted activities.” Under existing law, when an employee behaves offensively while attempting to improve group working conditions (such as by striking, circulating a petition, challenging management, or complaining about working conditions on social media), the employer may not automatically discipline or discharge the employee for that offensive conduct. Rather, the National Labor Relations Board historically has considered several factors when determining whether or not an employee’s offensive conduct caused the employee to lose protection under federal labor law. This standard has prompted numerous cases where the Board has required employers to reinstate employees who profanely insulted coworkers, aggressively yelled at managers, or even directed slurs at others.
Nevertheless, recent developments strongly show that the Board will change this standard sometime soon. First, as we discussed earlier this year, the Board recently invited public comments about whether it should reexamine this standard, including in cases involving “statements of a racial or sexual nature.” The Board asked for comments about, among other matters, whether it should change the factors it considers, whether it should reduce the protection employees receive when their statements are offensive on the basis of race or sex, whether the Board should explicitly consider the “norms” of the workplace at hand, and how differently the Board should treat conduct on a picket line versus conduct in other settings. Earlier this month, the Board extended the deadline for interested parties to submit comments or responses to others’ comments.
Then, earlier this week, the Board’s General Counsel filed a brief that explicitly articulated his position on these issues. Because General Counsel Robb oversees the Board’s Regional offices and decisions about which cases the Board litigates, his position is particularly noteworthy. In this brief, the General Counsel asserted that “[c]onduct or speech that an affected employee would reasonably find contributes to a hostile work environment or creates a situation that could reasonably lead to violence must never be protected by [federal labor law].” The General Counsel recognized that it is unfair and improper to force employers to choose between potential liability under federal labor law (if they issue discipline for such conduct) and potential liability under Title VII or other anti-harassment laws (if they do not issue discipline). In short, he clearly asserted that the Board should change its standard for assessing offensive conduct, and he appeared to be advocating for a categorical rule that never protects conduct that would contribute to a hostile work environment under the law (which would arguably extend to all racial or sexual slurs, among other conduct).
In short, it appears highly likely that the Board will issue new guidance soon on this subject. In the interim, General Counsel Robb’s position reduces the likelihood that individual Board Regional offices will issue complaints in these types of cases, and that federal courts will apply the current standard in a particularly employee-friendly manner in pending cases. Both union and non-union employers should monitor this development and, assuming the Board does issue a new standard, they should consider revisiting their policies to ensure they adequately protect the employer’s flexibility to prevent and remedy offensive conduct in the workplace.