Employment Law Alert – NLRB Changes Standard for Offensive Comments Made in the Course of Protected Activity
August 20, 2020
Last month, the National Labor Relations Board (NLRB) issued a new standard which gives employers more flexibility to discipline – and terminate – employees for abusive language used while otherwise engaging in protected concerted activity under the National Labor Relations Act (NLRA).
Prior to the new standard announced in In re: General Motors, LLC and Charles Robinson, 14-CA-197985 and 14-CA-208242, the NLRB permitted employees to engage in obscene, racist and sexually harassing speech, if such speech was made while engaged in protected concerted activity. As a result, employers were forced to keep employees on staff even though their behavior may have run afoul of antidiscrimination laws and acceptable workplace conduct standards.
Under the new standard, if the NLRB is able to prove that the motivating factor for the disciplinary action at issue was the employee’s protected concerted activity, the employer can avoid liability if it can prove that it would have taken the same action if the employee was not engaged in the protected concerted activity. An employer can prove this by showing, for instance, prior consistent discipline for the same kind of obscene, racist or sexually harassing speech.
For legal guidance on avoiding liability under the NLRA or discrimination laws when disciplining an employee, contact your employment law attorneys at Shulman Rogers.
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.