NLRB LogoAn employee confronts you – a small business owner – and calls you a “f***ng mother f***cker,” a “f***ing crook,” an “a**hole,” and “stupid,” tells you that none of your employees like you and everyone talks about you behind your back, and warns you that you’ll regret firing him, if you do. Or you’re a manager and one of your direct reports posts a message on Facebook calling you “such a NASTY MOTHER F***ER,” someone who doesn’t “know how to talk to people,” punctuating the post with “F** his mother and his entire f***ing family!!! What a LOSER!!!!,” and throws in at the end, “Vote YES for the UNION!!!!!” Or, you are a Black employee working for a company whose employees are currently on strike. You decide to continue working, as is your legal right, but as you cross the picket line, a white employee shouts out to you: “Hey, anybody smell that? I smell fried chicken and watermelon.”

If you’re cringing (or worse!) right now, you should be. Reasonable employers and managers should cringe, and most would instinctively discipline or fire employees for engaging in such reprehensible employee behavior. But until recently, employers assumed the risk if they did so, the National Labor Relations Board (“NLRB” or “Board”) would fault them for chilling employees’ right to engage in protected concerted activity. That changed however on July 21, 2020, when the Board issued a sensible and long-overdue decision in General Motors LLC, making it easier for employers to discipline or fire workers for offensive, racist, sexist, and other profane language or conduct in the workplace, even when the offender is engaging in protected concerted activity.

You may be asking what the protected concerted activity is in each of the scenarios above. A fair question. By way of refresher, and put simply, protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”) is conduct engaged in by two or more workers (or by one employee on behalf of a group of workers) regarding wages, benefits, or other terms and conditions of employment. Under the NLRA, employees have the right to act with coworkers to address work-related issues in a number of lawful ways, such as circulating a petition for better hours, refusing collectively to work in unsafe conditions, or joining together to talk to an employer or government agency about problems in the workplace. Employers cannot discharge or discipline employees for engaging in concerted activity for their mutual aid and protection, but this right is balanced against – and at times conflicts with – an employer’s right to require permissible workplace conduct, such as maintaining the harassment-free workplace required by federal and state equal employment opportunity laws. This isn’t always (ever?) an easy balancing act, and for many years, the NLRB (and federal courts) have grappled with where to draw the line between protected conduct and unprotected offensive workplace behavior.

Prior to this week’s Board decision in General Motors, the Board was reticent to sanction employee terminations for misconduct where it found that the abusive – even reprehensible – conduct and the Section 7 activity were analytically inseparable, even finding in cases involving facts like those described above that the employer was required to reinstate the worker who engaged in such conduct, with back pay, where the employee’s abusive behavior was inextricably intertwined with his or her protected concerted activity. In an effort to balance employees’ right to engage in protected concerted activity with employer rights to maintain order in the workplace, the Board over time issued a hodgepodge of setting-specific standards to determine whether abusive employee conduct stripped employees of protection under the NLRA. For example, in the case of unprofessional and abusive outbursts in the workplace (see the first scenario above), the Board considered four factors (the place of the discussion; the subject matter of the discussion; the nature of the employee’s outburst; and whether the outburst was, in any way, provoked by an employer’s unfair labor practice) to determine whether conduct was protected or not. Where an employee’s social media posts were scrutinized (see the second scenario above), the Board considered the totality of the circumstances to determine whether the employee was immune from discipline. Finally, in the context of picket-line behavior (the third scenario above), the Board considered whether the abusive conduct would reasonably be expected to coerce or intimidate non-strikers. These different and inconsistent standards not only tilted the scales in favor of protecting employees and disregarded employers’ right to maintain order and respect in the workplace, but also failed to account for employers’ obligations to comply with statutes other than the NLRA, such as those prohibiting hostile work environments on the basis of protected characteristics.

To remedy this issue, and to provide clarity and uniformity, the NLRB held this week in General Motors that, going forward, regardless of the setting involved, employee misconduct-type cases will be analyzed under the Board’s familiar Wright Line burden-shifting standard, which requires proof that:

  • the employee engaged in Section 7 activity;
  • the employer knew of that activity; and
  • the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.

If this initial burden is shown that the employee’s protected activity was a motivating factor in the discipline, the burden of persuasion shifts to the employer to demonstrate that it would have taken the same disciplinary action even in the absence of the Section 7 activity. The NLRB explained that the Wright Line standard will provide more equitable and sensible results by striking an appropriate balance between workers’ rights to engage in protected concerted activity and join unions on the one hand, and employers’ rights and legal obligation to protect employees against discrimination and harassment in their workplaces on the other.

For example, in the second scenario described above, it is plausible that the employer discharged the employee because his profane, offensive, and threatening attack on the manager would make it difficult for the two to work together, or because it violated the employer’s policy prohibiting workplace violence, not because the post also happened to include a solitary pro-union sentiment. Similarly, it is also plausible that the employer in the third example decided to terminate the striker’s employment not because of protected picketing activity, but because he exhibited blatantly racist and discriminatory behavior against another employee that no employer should have to abide. Accordingly, absent evidence of discrimination targeting Section 7 activity, the NLRB explained that it “fail[ed] to see the merit of finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees” because those “results simply do not advance the Board’s mission of promoting labor peace or any of the other principles animating the Act.”

General Motors therefore provides some much-needed clarity for employers faced with employees who engage in outrageously bad behavior while also arguably engaged in protected concerted activity. Employers now have the discretion to punish incivility and discrimination in the workplace, even if the offender is engaged in behavior that could conceivably fall under the umbrella of protected concerted activity, so long as the decision to punish the employee is not motivated by the protected conduct. Nevertheless, before disciplining employees for engaging in profane or outrageous conduct, employers should determine whether the employee was engaged in protected concerted activity while doing so, and soberly evaluate whether the employee would be disciplined in the same manner regardless of whether he or she was engaged in that protected activity.