The National Labor Relations Board restored federal labor law protection for employee threats and profanity when it occurs during what the board holds is legally protected activity under labor law.
Broad free speech protections regarding wages and working conditions exist under Section 7 of the National Labor Relations Act, Until the Trump era, the NLRB had confirmed that this protection included abusive and profane language, which employers could not ban or discipline except in extreme cases.
The Trump-era board said an employer could discipline or discharge employees for this kind of misconduct – even in cases where happened in connection with what is called protected concerted activity, says attorney David Phippen of the Constangy Brooks Smith & Prophete law firm.
The Biden-appointed NLRB has now chosen to return to the position that it gets to decide ultimately whether the worker misconduct is severe enough – in the board’s subjective view – to be unprotected.
“There is no bright line for employers,” Phippen explains. “Even when it comes to egregious misconduct such as use of racial epithets, sexual harassment, threats of violence, threats of damage to property or person, or abusive conduct or obscene comments and gestures, employers may be at risk if they take action based on the employee’s behavior – even if the action was taken solely because of the misconduct and not because of the protected concerted activity.”
He adds, “Employers may want to be more circumspect in their decision-making when considering discipline or discharge for employee misconduct that takes place along with even arguably protected concerted activity. We expect this board majority to take a broad, if not an almost all-encompassing, view of what constitutes protected concerted activity.”