On May 1, the National Labor Relations Board (NLRB) issued an opinion that changes, yet again, the analysis for disciplining employees who use profanity in the context of labor activities.
Prior to 2020, the standard for determining whether an employee could be lawfully disciplined for profane or offensive comments or outbursts made while engaged in protected union activity depended on the context. Over many years, the NLRB’s case law created different standards for outbursts where management was involved, for outbursts on the picket line, and for social media posts.
In January 2020, the NLRB decided the General Motors case and established a single analysis to be used for all such outbursts, regardless of the specific context in which the outburst was made. The General Motors decision was viewed favorably by employers as a more predictable way to analyze the employee’s conduct.
But the NLRB’s decision in Lion Elastomers LLC II, turns the clocks back to a time before General Motors, reverting to the context-specific analysis. The NLRB found that labor disputes are often heated and therefore employees must be given some leeway for bad behavior while engaging in concerted activity, such as picketing, union organizing, or campaigning.
With General Motors now overturned, employers once again must evaluate each situation independently based on the severity of the conduct and the context in which the speech was made. Speech that is profane or offensive—even sexist or racist—cannot be grounds for discipline if it was made in the context of protected labor activity unless it rises to the level of extreme behavior. A determination of whether profane speech is protected requires an evaluation of the circumstances specific to that instance, including the severity of the language used, the audience, and the location of the conduct.
Employers should consider consulting experienced labor counsel prior to issuing discipline for profane or offensive conduct.
