Profanity on the Job Examined

November 7, 2019 |

The National Labor Relations Board recently asked for briefs to consider a thorny issue:  are profanity and slurs protected speech under the NLRA? Historically the NLRB has allowed very saucy language by workers as part of their protected activity rights under Section 7. While more states and case law address workplace bullying and hostility, the NLRB has continued its long-standing practice of protecting some awful speech.  A few examples of the NLRB standards include allowing racist language on the picket line and an employee telling a manager to shove his idea up his…rhymes with pass. Under state and federal laws, employers must protect employees from harassing and discriminatory language and allow the same language by an employee if the activity is protected under Sec 7.  Is your head about to pop off yet?

Let’s do a quick refresh of Sec 7 concerted protected activity:

  • Applies to all employees, union or not
  • Must be for the “mutual aid or protection” of a group of employees or a representative of employees
  • Factors considered when evaluating protected activity: place, subject matter, nature of outburst and whether outburst provoked by unfair labor practice.

In the past, the NLRB has construed these standards broadly.  Will that change? The hope is the Board’s call for briefs will knock some sense into them alleviate the rock and a hard place prior decisions have created for employers. Fingers crossed.

Of course the best practice is to have well drafted policies clearly outlining acceptable speech and behavior, which are uniformly enforced– like our clients do. No? Call us.  We can help.

 

 

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