The National Labor Relations Board (NLRB) just made it easier to address employee outbursts involving offensive or abusive statements–including outbursts involving profane, racist, and sexually inappropriate remarks.
In General Motors LLC, 369 NLRB No. 127, a decision issued July 21, 2020, the NLRB modified the long-used Wright Line test for deciding whether protected concerted activity is a motivating factor in employee discipline. As you know, all employees, regardless of whether they belong to a union, have a right under federal labor laws to engage in “concerted activity” in the workplace. Concerted activity is when employees collectively act or discuss working conditions and terms and conditions of employment, for example, striking, picketing, handing out leaflets, raising safety concerns, complaining about wages and benefits, refusing to work in unsafe conditions, and raising concerns about other terms and conditions of employment.
What the General Motors decision does is allow an employer to terminate an employee for offensive or abusive statements, even if the employer was partially motivated by the protected concerted activity within the statement or that occurred while the employee was making the statement.
To challenge discipline or a termination, the union or NLRB must show that: (a) the employee engaged in protected concerted activity; (b) the employer knew about the protected concerted activity; and (c) the employer had animus against the protected activity. Upon that showing, the employer may lawfully discipline or terminate the employee if it can show that it would have taken the same action even in the absence of the protected activity. One way to show this is by showing consistent discipline of other employees who engaged in similar conduct, but without the concerted activity.
In the General Motors case, the employee lobbed an F-bomb at his supervisor and mocked his black supervisor by saying “Yes, Master Anthony” and mockingly acting in a caricature of a slave. These incidents came in the context of a discussion about mandatory overtime and a meeting between management and union representatives about subcontracting. Statements made in the context of these activities are normally protected concerted activity. The NLRB held that the employee’s offensive outbursts exceeded the protection of the National Labor Relations Act’s Section 7 because of its profane and racially offensive content.
The General Motors decision affects employee encounters with management, postings on social media, and statements on the picket line.