Forward Progress

By Tim Murphy - Skoler, Abbott & Presser, P.C.

July 28, 2020

Last week, the National Labor Relations Board changed its standard for determining whether employees who make abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—while engaging in activity otherwise protected under the National Labor Relations Act (Act) may be lawfully disciplined or discharged by their employer.

The decision in General Motors, LLC resolved three cases—dealing with three different scenarios (encounters with management, social media posts, and picket line misconduct) and three different legal standards—by ruling that all cases involving discipline for offensive or abusive conduct in the course of otherwise-protected activity will be decided under a long-existing standard (Wright Line). Under Wright Line, if it is proven that the employee’s protected activity was a motivating factor in the discipline then the employer must then prove it would have taken the same action even in the absence of the protected activity. One way to do that is to demonstrate similar conduct has been met with similar discipline in the past.

The Board overruled the earlier decisions in these cases concluding that the standards applied “often resulted in reinstatement of employees discharged for deeply offensive conduct.”  The Board concluded that the previous decisions reflected viewpoints that were out of step with current workplace standards and were out of sync with antidiscrimination law. The General Motors decision should help to alleviate the dilemma that many employers faced: discipline an employee for offensive conduct during protected activity and risk an unfair labor practice or do nothing and risk a discrimination claim by another employee based on that offensive conduct.

While critics of the decision will likely view the decision as another step backward by the Trump Board in its effort to stifle employee rights to speak out and organize, the Board got this one right. There is just no reason in 2020 to permit employees to engage in profane, sexist, or racist tirades in the workplace with impunity.