As states continue to pass legislation focused on the workplace, employers should be mindful that federal agencies are also continuing to regulate the workplace even in the absence of new federal legislation, especially with respect to when disputes arise regarding compensation and working conditions. Section 7 of the National Labor Relations Act (“Act”) arguably protects an employees’, including non-union employees’, rights to engage in concerted activities, including circumstances where an employee’s profane language or sexually- or racially- offensive speech is legally protected. Following criticism from the judiciary, the National Labor Relations Board (“NLRB”) announced this month it is now seeking input on the scope and applicability of this protection.

The NLRA protects employee rights to engage in protected “concerted activities,” with or without a union. To be protected by Section 7, the concerted activity must occur for the group’s “mutual aid or protection” (29 U.S.C. § 157). Federal courts and the NLRB construe this phrase broadly to include collective bargaining activities and other activities by a group of employees or by an individual working on behalf of a group of employees to improve the terms and conditions of employment.

The NLRB historically balances four factors in evaluating whether an employee’s statements are protected: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice. Here, we are concerned with the third factor, which is illustrated by the NLRB’s decisions in Plaza Auto Center, 360 NLRB 972 (2014) and Cooper Tire, 363 NLRB No. 194 (2016), enfd. 866 F.3d 885 (8th Cir. 2017).

In Plaza, an employee complained to the office manager regarding the company’s compensation practices, and the company owner called a meeting and told the employee he was being negative and asked too many questions. After the owner suggested the employee did not need to work for the company, the employee made “obscene and personally denigrating” remarks to the owner, resulting in the owner firing the employee. Although the NLRB found that the third factor in the above test—the nature of the employee’s outburst—weighed against protection, the NLRB nevertheless concluded the remarks were protected under Section 7 because the remaining factors weighed in favor of protection. Similarly, the NLRB in Cooper Tire found that “racist, offensive, and reprehensible” statements made at a picket line were protected speech, so long as they were not threatening. Notably, the NLRB’s review of picket line remarks differs somewhat from its approach to workplace conduct.

Most recently, in General Motors LLC, 368 NLRB No. 68 (2019), an NLRB ALJ reviewed of a series of profane outbursts, and concluded that initial remarks were protected speech, but two subsequent racially-charged outbursts lost the protection of Section 7. The company appealed. In its September 5, 2019, Notice and Invitation to File Briefs to the parties and interested amici, the NLRB acknowledged that the “Board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as within the Board.”

While some courts have noted the moral repugnance of protecting sexually or racially bigoted speech as a matter of principle, other judges note that compliance with Section 7 could require employers to open themselves up to liability under anti-discrimination laws by not disciplining employees deploying such epithets against their coworkers. In other words, complying with both federal labor and anti-discrimination laws puts employers between a rock and a hard place.

Because of this criticism, the NLRB is set to reconsider Plaza and Cooper Tire and offer revised standards for determining “whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who utters them the protection of the Act.”  Inherent in this request for input is a recognition of the difficulty this difference in laws presents for employers.

As outlined in detail here, the Board requested input on several questions:

• Under what circumstances should profane language or sexually or racially offensive speech lose the protections of the Act? More specifically, “are there circumstances under which the ‘nature of the employee’s outburst’ factor should be dispositive as to loss of protection, regardless of the remaining[] factors?”
• To what extent should the principle that employees should be given some “leeway” in expressing profane or racially or sexually-offensive language remain applicable?
• Should the board consider the norms of a particular workplace (e.g., is profanity common, or are there rules against profanity)?
• Should the board adhere to, modify or abandon the standard that context (e.g., speech made on a picket line) matters when determining whether racially or sexually-offensive language is unprotected?
• Perhaps recognizing how difficult it can be for employers to comply with anti-discrimination laws and the Act, what relevance should the Board give to anti-discrimination laws in determining whether an employee’s statements lose the protections of the Act?

The deadline for submitting input on the above questions is November 4, 2019.  Employers should continue to monitor these developments. Regardless of the outcome, the NLRB’s determination will affect employers of unionized and non-unionized employees alike.