July 22, 2020
Authored by: Anthony George
Yesterday, the National Labor Relations Board freed employers to take disciplinary action against abusive speech by employees targeting managers, supervisors, and co-workers. In General Motors LLC, the Board swept away years of Obama-era precedents that had permitted employees to engage in profane, abusive, and even racist speech if that speech occurred in the context of exercising rights protected by Section 7 of the National Labor Relations Act – such as challenging disciplinary action in a meeting with company officials, complaining about working conditions in social medial posts, or walking a picket line. In their place, the Board restored the familiar Wright Line test from 1980, which focuses on whether the employer was lawfully motivated by the employee’s offensive conduct or unlawfully motivated by the employee’s protected activity.
In the Obama-era cases overturned yesterday, the Board had considered abusive conduct in connection with protected activity to be inextricably intertwined with that protected activity and therefore subject to protection under the NLRA. For example, in cases from 2014-2016, the Board had punished employers for discharging employees who: (1) called the owner of the employer a “f—king mother f—king” and a “f—king crook” while complaining about compensation; (2) attacked a manager on Facebook while encouraging unionization, calling him a “nasty mother f—ker” and saying “f—k his mother and his entire f—king family!!!!”; and (3) shouting racist slurs to black replacement workers from a picket line, including “Hey, did you bring KFC for everyone?” and “I smell fried chicken and watermelon.”
The previous Board