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NLRB Ends "Unwarranted Protection" of Offensive Speech

Posted Thursday, July 23, 2020 1:00 am

When employees are disciplined or discharged after making abusive or offensive statements – including profane, racist, and sexually unacceptable remarks – in the course of activity otherwise protected under the National Labor Relations Act, the legality of their discipline will be decided under the Wright Line standard.  General Motors LLC, 369 NLRB No. 127 (2020).  Under Wright Line, the General Counsel must first prove the employee's protected activity was a motivating factor in the discipline. The employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.

According to NLRB Chairman John F. Ring, “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace.”  Chairman Ring added, “For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

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