On July 21, 2020, the National Labor Relations Board (commonly referred to as the NLRB) eased the standard for judging whether an employer can discipline an employee for abusive or offensive language used during the course of a protected activity.
The NLRB enforces the National Labor Relations Act (NLRA) which protects employees’ rights to unionize or otherwise discuss the terms or conditions of their employment. These types of activities are considered protected activities under the NLRA when employees act in concert for their mutual aid or protection.
Over the years, there’s been a struggle between balancing of employees’ NLRA rights against employers’ needs to discipline employees who engage in profane and sometimes even discriminatory behavior at work. Under previous legal standards, an employer was at risk of committing an unfair labor practice if it disciplined an employee for using profane or harassing language while complaining about terms and conditions of employment.
Because of the NLRB’s new holding in General Motors LLC, employers can now rely on the Wright Line standard to assess whether an employee may be disciplined. In that case, the NLRB considered whether the employee could be terminated because of his profane outburst to his manager about working conditions.
Applying the Wright Line standard, the NLRB first requires the employee to establish that his protected activity was a motivating factor for the employer’s discipline. If the employee meets this burden, the burden shifts to the employer to prove that it would have taken the same action even in the absence of the protected activity. There is no unfair labor practice if the employee (1) can’t meet his initial burden or (2) meets his initial burden, but the employer establishes that it would have taken the same action even in the absence of the protected activity.
The new standard makes it easier for employers to appropriately respond to and, where necessary, discipline employees for outbursts that violate standards of civility and non-harassment.
If you’re an employer with questions about whether your policies and procedures are compliant; now’s the ideal time for review. Contact our team for guidance today.
