The National Labor Relations Board (NLRB) in recent years has issued a series of decisions protecting employee statements that included profane, sexist or racist comments, if those statements were made while employees were participating in protected activity under the National Labor Relations Act (NLRA). Among other things, the NLRA protects employees' rights to discuss the terms and conditions of their employment. For example, the NLRB ruled that racist remarks made while picketing and a profane social media tirade were protected. Disciplinary action for an employee’s exercise of protected activity is prohibited.
In a recent decision, the NLRB has given employers more latitude to discipline workers for such profane, sexist or racist comments. Even if the employer was aware of a worker's participation in NLRA-protected activity, and there is some connection between the protected activity and the discipline, the new ruling allows an employer to discipline a worker if it would have taken the same action in the absence of protected activity. The fact that protected activity was involved does not automatically prohibit discipline for the offensive speech. As the NLRB commented about the tests used in its prior decisions:
"While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the [NLRA], they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination law."
The new rule gives employers more leeway to take immediate, corrective action in response to harassment, threats or discriminatory behavior. The rule also balances the NLRA-protected rights of an employee to participate in concerted activity with the rights of all employees to be free from harassment, discrimination and threats of violence.
Feel free to contact us if you have questions about this matter.