The National Labor Relations Board ("NLRB") is expected to rewrite its rules protecting employees who violate employers' policies when they use profane, racist or sexist language. In September, the NLRB requested public comment on whether it should overrule or modify its holdings in three cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act ("NLRA"). A change in the law is overdue. Currently, employers must consider the context and whether the employer’s actions provoked an employee to use profane, racist or sexist language before issuing discipline when the employee’s comments could be perceived as protected concerted activity under the NLRA. Allowing employers to discipline employees for inappropriate language, regardless of the context, will harmonize the NLRA with other laws, such as Title VII of the Civil Rights Act, which requires employers to prevent racist, sexist or other discriminatory language in the workplace.
 
The NLRB’s request for public comment sought input on its rulings in three cases in which employees engaged in the following (we have edited some of the content due to publishing standards):

• In Plaza Auto Center, an employee lashed out at his supervisor with expletives, called the supervisor a “f*****g crook,” told the supervisor he was stupid, and told the supervisor he would regret it if he terminated his employment.
• In Pier Sixty, an employee wrote a Facebook post about her supervisor stating “Bob is such a NASTY Mother F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
• In Cooper Tire & Rubber, an employee directed racist insults – e.g., “Hey, anybody smell that? I smell fried chicken and watermelon” – at replacement workers during a labor dispute.

Unsurprisingly, the employees’ outrageous conduct in these cases violated their employers’ policies. However, in all three cases the NLRB found that, despite the profane or racist nature of the language, the employees engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” As a result, the NLRB found the employees were wrongfully discharged when their employers terminated their employment based on the profane or racist language.
 
The NLRB’s request for public comment on whether it should overrule or modify the standard relied on these three cases signals it is likely to depart from that standard. For instance, in September the NLRB overruled a previous rule allowing union representatives to come onto an employer’s property to speak with customers after soliciting public comment. A change in the law is needed here. Indeed, in a brief to the NLRB, the Equal Employment Opportunity Commission advocated for a revised standard that lets employers address the use of offensive language, including with discipline as appropriate. The NLRB’s General Counsel has also advocated for a change to the NLRB’s approach to offensive conduct.
 
It is likely the NLRB will change the law to harmonize the NLRA with other laws, such as Title VII of the Civil Rights Act, by stating that racist, sexist or other discriminatory conduct that potentially creates a hostile work environment is not protected concerted activity. The NLRB likely will not go as far for prohibiting simply profane conduct because it has long recognized that cursing and other obscenities is a reality of many workplaces. Instead, it likely will modify the current standard to better reflect “that employees do not typically curse each other and their superiors like characters in a Scorsese film.” Plaza Auto Center, 360 NLRB at 985 (Johnson, dissenting). We will let you know how the NLRB decides regarding offensive conduct.  

Please contact us if you have any questions.