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NLRB Boosts Employers' Ability to Suspend, Fire Workers for Profane Conduct

July 24, 2020

Employees have rights to certain protected activities under Section 7 of the National Labor Relations Act (NLRA). Employers cannot interfere with these rights. But what happens when an employee’s conduct during a protected activity becomes abusive? In its July 21 decision, the National Labor Relations Board acknowledged an employer’s right to discipline employees despite protected activity if the employer shows it would have disciplined the employee in the absence of the protected activity.

The Board’s Decision

The board decided in General Motors, LLC, that an employee’s profane and offensive conduct at a General Motors assembly facility should be measured by the Wright Line standard. General Motors suspended an employee after each of three separate incidents. In each, he engaged in profane, racially offensive and sexually explicit conduct toward management during union activity. In September 2018, an administrative law judge (ALJ) found that although the employee’s conduct lost him NLRA protection in two incidents, his “profanity-laced outburst” toward a manager retained protection.  

The board remanded the ALJ’s decision. It reviewed and jettisoned a series of standards that assessed employees’ conduct by the setting in which it took place. These setting-specific standards, the board observed, presumed an employer’s discipline based on abusive or offensive conduct during Section 7 activity violated the NLRA “unless the board determine[d], under one of its setting-specific standards, that the abusive conduct lost the employee the protection of the Act.”

The board replaced these setting-specific standards with the well-known Wright Line standard. The board observed the standard has been “typically used to determine whether discipline was an unlawful response to protected conduct or lawfully based on reasons unrelated to protected conduct.” Under the Wright Line standard, the disciplined employee must first show the employee’s protected activity was a motivating factor in the discipline. The burden then shifts to the employer to show it would have taken the same action even in the absence of the protected activity.

What it Means for Employers

The board suggests its decision will lead to greater predictability in this context and will better harmonize its decisions with antidiscrimination law. While this likely is true, the decision will also help employers decide if it is lawful under the NLRA to discipline an employee who makes abusive or offensive statements during otherwise protected activity. The decision should renew employers’ confidence when faced with abusive or offensive conduct by employees simultaneously engaged in protected activity under the NLRA, particularly where employers have a documented record of even-handed discipline for similar conduct. 

Please contact Nicholas F. Morisani or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.