News & Analysis as of

Offensive Language Employer Liability Issues

Sheppard Mullin Richter & Hampton LLP

The NLRB Must Apply Its Prior Standard for Protected Employee Outbursts and Abusive Speech

On July 9, 2024, the United States Court of Appeals for the Fifth Circuit told the National Labor Relations Board’s to reconsider the standard for whether abusive or inappropriate speech is protected under Section 7 of the...more

Ius Laboris

Can you be fired for sending private messages about colleagues?

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The German Federal Labour Court has clarified the rules on when an employee who makes offensive comments about colleagues in a private chat can be dismissed. According to a recent decision of the German Federal Labour...more

Genova Burns LLC

You Can Say What?! New Jersey District Court Rejects Claims of Hostile Work Environment

Genova Burns LLC on

On July 29, 2023, the United States District Court for the District of New Jersey in Tavares v. Builders FirstSource Northeast Group, Inc., granted Defendant’s Motion for Summary Judgment most notably finding that racist and...more

Parker Poe Adams & Bernstein LLP

Third Circuit Revives Harassment Claim Involving Harassment by Psychiatric Center Patient

When defining what conduct constitutes a hostile and offensive working environment under Title VII, the U.S. Supreme Court directs lower courts to look at the context of the behavior in the specific workplace at issue....more

FordHarrison

EntertainHR: Michigan’s Miscue—Is Your Company Ready for a Social Media Scandal?

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Only a few days after being hired by the University of Michigan’s football program as the assistant director of football recruiting, Glenn Schembechler (son of longtime Michigan head coach Bo Schembechler) resigned after his...more

Sheppard Mullin Richter & Hampton LLP

…But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech by Employees While They Are Engaged...

In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have...more

Cozen O'Connor

NLRB Makes it Harder to Discipline Employees who Engage in Abusive Behavior

Cozen O'Connor on

In Lion Elastomers LLC, 372 NLRB No. 83 (5/1/2023)(Lion Elastomers), the National Labor Relations Board (NLRB or Board) revisited the issue of what happens when an employee engages in abusive or inappropriate conduct while...more

Husch Blackwell LLP

NLRB Provides Employees Extra Leeway to Use Offensive Language

Husch Blackwell LLP on

On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct...more

FordHarrison

Kanye’s Getting Cancelled: How to Respond to Employees’ Racist Comments

FordHarrison on

Kanye West’s anti-Semitic comments on Instagram and Twitter have prompted a swift backlash by businesses formerly associated with the rap and fashion mogul. Thus far, West has been dropped by Gap, Balenciaga, Adidas, talent...more

Bradley Arant Boult Cummings LLP

Employer Discipline Lessons In DC Circ. Vulgar Protest Ruling | Insights & Events

A ruling of the National Labor Relations Board in favor of an employee fired for using vulgar language on a company bulletin board was affirmed in August by the U.S. Court of Appeals for the District of Columbia Circuit. ...more

Proskauer - Labor Relations Update

D.C. Circuit Affirms NLRB Vulgar Graffiti Ruling

On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the...more

FordHarrison

Offensive Language and Physical Violence in the Workplace: Was Will Smith Justified in Hitting Chris Rock in the Face?

FordHarrison on

Television audiences for award shows have been in steep decline for years, but the 2022 Academy Awards received far more media attention after the fact than any other in modern history. This attention was all thanks to an...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

Fifth Circuit Rules Age-Related Comments Must Be Specific to Defeat Summary Judgment

The Fifth Circuit Court of Appeals recently issued a ruling concerning the discharge of Michael Harris from his position with the City of Schertz as the city marshal. In doing so, the Fifth Circuit gave a bit more clarity on...more

Proskauer - Labor Relations Update

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected...

As we have often discussed, there is a fine line between protected and unprotected activity. Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

Sixth Circuit Backs Termination of Public Employee for Racially Derogatory Social Media Post on 2016 Presidential Election

On October 6, 2020, in Bennett v. Metropolitan Government of Nashville, No. 19-5818, the U.S. Court of Appeals for the Sixth Circuit reversed a district court’s decision in favor of a public employee who claimed that the city...more

Robinson & Cole LLP

NLRB Draws a Line: Polite Picket Lines, Civil Social Media and Courteous Complaining

Robinson & Cole LLP on

Employers are increasingly aware that an inclusive workplace is synonymous with one that does not tolerate abusive conduct, personal attacks or any form of harassment, especially harassment that is based on an employee’s...more

Akerman LLP - HR Defense

Common Sense Finally Prevails: Employers No Longer have to Tolerate Abusive and Offensive Conduct in the Workplace

Your employee has just cursed at you, calling you every racist and/or sexist name in the book. Naturally, that employee must go! Just as you are ready to sign off on the termination, a thought occurs to you: “Uh-oh. He was...more

Stinson LLP

NLRB Updates Framework for Analyzing Discipline Based on Offensive Conduct or Behavior

Stinson LLP on

In its recent General Motors LLC decision, the National Labor Relations Board fundamentally changed its framework for deciding whether employees engaging in offensive conduct or behavior are protected by Section 7 of the...more

Holland & Knight LLP

NLRB Restores Civility to Workplace

Holland & Knight LLP on

In General Motors LLC, the National Labor Relations Board (NLRB) departed from recent cases condoning abusive employee behavior when accompanied by protected activity. (See previous Holland & Knight alert, "Recent NLRB...more

Kramer Levin Naftalis & Frankel LLP

Offensive Employee Outbursts Are Not Protected Activity Under the NLRA

A recent decision by the National Labor Relations Board (NLRB or Board) has modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

NLRB’s New Decision Cuts Ties Between Abusive Conduct in the Workplace and Protected Conduct

On July 21, 2020, the National Labor Relations Board issued its decision in General Motors LLC, 369 NLRB No. 127 (2020), overruling decades of precedent granting employees considerable freedom to engage in abusive or...more

Pullman & Comley - Labor, Employment and...

Speak No Evil: The NLRB Drops “Setting-Specific” Standards for Cases Involving Abusive Employee Speech Made in the Course of...

The Trump-era National Labor Relations Board has struck again.  On July 21, 2020 in General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020), the NLRB overruled longstanding precedent and rejected “setting-specific”...more

Morgan Lewis

NLRB Limits Protection Given to Abusive, Profane, or Offensive Workplace Conduct

Morgan Lewis on

The National Labor Relations Board has finally abandoned its problematic standard around the discipline and discharge of employees who engage in abusive conduct in connection with protected concerted activity. On July 21, the...more

Epstein Becker & Green

The Board Brings the NLRA Into the Modern Era of Discipline for Abusive Conduct, and Union Leaders Lament “Guys Like Us, We Had It...

Epstein Becker & Green on

On Tuesday, the three-member, all Republican, National Labor Relations Board (the “Board”) issued a 3-0 decision in General Motors LLC and Charles Robinson, 369 NLRB No. 127 (July 21, 2020)...more

Seyfarth Shaw LLP

Seyfarth Policy Matters Newsletter - July 2020 #4

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NLRB Decision Gives Employers More Leeway to Discipline Employees for Offensive Speech.  Traditionally, the National Labor Relations Act protected offensive or even abusive speech by employees when the worker is involved in...more

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