Prior to 2020, the National Labor Relations Board (NLRB) took a three-pronged approach to analyzing whether vulgar, threatening, or offensive speech by employees fell inside or outside of the protections of section 7 of the National Labor Relations Act (NLRA). As we discussed at our recent breakfast seminar, depending on the context in which the vulgar or offensive speech was made, the NLRB would apply a different standard to determine its protection – the three scenarios the NLRB was prepared to address were speech towards management in the course of negotiations, speech on social media and among employees, and speech on the picket line.
In 2020, the NLRB consolidated the three-part test into one basic baseline civility test when it issued its General Motors decision. Under this decision, employees who engaged in “abusive conduct” – particularly egregious violations of general notions of civility, such as physical threats, racist insults, or copious profanity – were not protected by Section 7 of the NLRA even if the employee was engaging in otherwise protected conduct. This standard rested on the premise that it is absolutely possible to engage in protected concerted activity without resorting to threats and offensive comments.
The 2020 decision served to correct course a bit, as the prior three-pronged standard had resulted in the board finding some utterly vile behavior to be protected, such as:
- Unleashing a string of profane insults at a supervisor;
- Posting a profanity-ridden tirade on social media insulting a supervisor and his family;
- Using the n-word and other racial epithets towards Black replacement workers while on a picket line;
- Making overt sexual insults towards non-strikers;
- Repeatedly calling non-strikers “whores” and suggesting one sell her daughter at the flea market.
All of this conduct would likely have not been protected concerted activity under the General Motors standard.
On May 1, 2023, however, the NLRB reversed course in its Lion Elastomers LLC decision and discarded the General Motors “abusive conduct” standard, returning the state of the law to the pre-2020 standard.
So what does this mean? This means that employers, even those of non-unionized workplaces, lose the ability to enforce even the most basic expectations of civility when their employees are engaging in protected concerted activity. We are left with the pre-2020 three-part standard:
- Conduct towards management is governed by a four-factor test: (1) the place of the speech; (2) the subject matter of the speech; (3) the nature of the employee’s outburst; and (4) whether any unfair labor practice provoked the outburst.
- Social media posts and conversations among employees are governed by a totality-of-the-circumstances test
- Picket line conduct is governed by whether non-strikers would reasonably feel intimidated or coerced by the conduct.
Employers thus must tread more carefully when determining whether to fire an employee for vulgar, threatening, obscene, or abusive comments or conduct and, as part of their termination due diligence, consider whether the employee’s terminable conduct might have been couched in otherwise protected Section 7 activity.