On July 21, the National Labor Relations Board (NLRB) issued a decision that provides employers with guidance on disciplining employees who resort to using profanity, hate speech, or other offensive statements in the workplace while engaged in concerted activity. In General Motors, the board addressed the following key issue: Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the [National Labor Relations Act] [NLRA]? Generally, an employee engaged in concerted activity is afforded protection from any form of reprisal from the employer under Section 7 of the NLRA (the act). An employee may lose this protection, however, if there is evidence that the employee engaged in severe abusive conduct.

Depending on the context of the employee's speech, the board previously applied different tests: one for when the language is used when talking to a supervisor; one for social media posts/discussions with a fellow co-worker, and another standard when employees are on a picket line.

In cases where an employee is having a workplace discussion with a manger, the four-factor test as set out in Atlantic Steel, 245 NLRB 814 (1979) was applied. Under Atlantic Steel, the board considers the following: the place of the discussion; the subject matter of the discussion; the nature of the employee's outburst; and whether the outburst was, in any way, provoked by an employer's unfair labor practice. The board's application of these factors to employee conduct has been inconsistent, making it challenging for an employer to maintain an orderly, nonhostile work environment while also adhering to the requirements of the act. In Verizon Wireless, 339 NLRB 640 (2007), an employee lost the protection of the act when he referred to a supervisor as "that b****" while soliciting employees to unionize, and telling one co-worker to show a union-related email to her "f****** supervisor." Conversely (and surprisingly) in Postal Service, 364 NLRB 62 (2016), an employee did not lose the protection of the act after she called a supervisor an "ass" during a one-on-one grievance meeting, hurled profanity at the supervisor, stood up, approached the supervisor, shook her finger at the supervisor within striking distance, and screamed "I can say anything I want," "I can swear if I want," and "I can do anything I want." The conduct in Verizon Wireless seems to pale in comparison to the threatening and offensive conduct in Postal Service, but the board held differently. Noting these relative illogical outcomes, General Motors found that the four-factor test set out by Atlantic Steel is not effective and, instead, "a cloak for agency whim."

When an employee makes offensive comments on social media, or to a fellow co-worker, the board previously applied a "totality of the circumstances" test. The board in General Motors stated that this standard is "amorphous," reiterating how capricious the prior decisions were. In Pier Sixty, 362 NLRB 505 (2015), an employer was found to have violated the act by discharging an employee for posting on Facebook about his manager: "Bob is such a NASTY MOTHER F***** don't know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!"

Picketing employees who spouted racist and sexist hate speech to nonpicketing co-workers have been afforded even more protection under prior board decisions. When conduct takes place on the picket line, the employee would only lose protection under the act if there was an overt or implied threat or a reasonable likelihood of an imminent physical confrontation. See Clear Pine Mouldings, 268 NLRB 1044 (1984); Catalytic, 275 NLRB 97 (1985). Applying this standard, the board held in 2016 that a white picketer was protected when he yelled to Black replacement workers, "Hey, did you bring enough KFC for everyone?" and "Hey, anybody smell that? I smell fried chicken and watermelon." See Cooper Tire & Rubber, 363 NLRB 194 (2016). In any other context in the workplace, this conduct would violate an employer's anti-discrimination policy, and warrant immediate disciplinary action, likely including termination. The Black employee may have a valid claim for discrimination based on race, and potentially a hostile work environment claim, based upon his employer's failure to respond decisively. Here, however, the white employee was protected, and the employer was found to have violated the act by taking any adverse action against the white picketer.

Thus, the General Motors board was particularly concerned about the tug-of-war between anti-discrimination and anti-hostile work environment policies and the previously inconsistent application of the Atlantic Steel factors.

The Equal Employment Opportunity Commission (EEOC) filed an amicus brief addressing this interplay and pointing out the EEOC's own guidance to employers: It is "critical that employers are able to take corrective action as soon as they have notice of harassing conduct—even if the harassing conduct has not yet risen to the level of a hostile work environment…this is because if the employer fails to take corrective action, and the harassment continues and rises to the level of an actionable hostile work environment, then the employer may face liability. The 'primary objective' of Title VII is 'not to provide redress but to avoid harm." See EEOC Amicus Brief at 18 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998)). For years, companies were faced with a Catch-22 when employees who were apparently engaging in concerted action were also violating by their speech or other conduct the employer's anti-discrimination or anti-harassment policy. Or worse, concerned that the speech was of such a threatening nature, the employer was loathe to return the employee to the workplace.

One Standard to Rule Them All: 'The Wright Line' Framework

Acknowledging that the Board has not been sensitive to the clash between the NLRA and Title VII, General Motors holds that the appropriate standard for evaluating whether an employee's abusive conduct is protected by the act is the standard set forth in Wright Line, 251 NLRB 1083. Prior Board decisions dispensed with the Wright Line standard as an appropriate test for evaluating whether the employer's discipline was an unlawful response to the protected conduct. General Motors reverts to Wright Line which better "honors the employer's right to maintain order and respect."

Under the burden-shifting framework of Wright Line, the general counsel will initially need to show that the employee engaged in Section 7 activity, the employer knew of that activity, and the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. General Motors, citing Tschiggfrie Properties, 368 NLRB 120 (2019). Once the general counsel makes the initial case, the employer will be found to have violated the Act unless it meets its defense burden to prove it would have taken the same action even in the absence of the Section 7 activity. But, if the evidence as a whole establishes that the reasons given for the employer's action are pretextual (false or not actually relied upon), the employer fails by definition to show that it would have taken the same action for those reasons and there is no need to perform the second part of the Wright Line analysis.

The board will apply the Wright Line standard retroactively to all pending cases where the board would have considered whether abusive conduct caused the employee to lose protection under the act. Further, the board will apply Wright Line to conduct involving managers, social media posts and picket lines—further simplifying the analysis.

Elizabeth P. Johnson is a shareholder at Fowler White Burnett where she focuses her practice on all aspects of labor and employment law. Contact her at [email protected].

Lindsay M. Massillon is an associate at the firm where she focuses her practice on labor and employment law and commercial litigation. Contact her at [email protected].