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NLRB Invites Public Input On Its Standards For Profane Outbursts And Offensive Statements

Volume: 18 | Issue: 18
September 9, 2019

The National Labor Relations Act (Act) protects employees' rights to complain about their terms and conditions of employment and to engage in collective bargaining activity. Because "the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses," the National Labor Relations Board (NLRB or Board) allows employees some leeway with regard to outbursts that may otherwise be considered unprofessional or disrespectful. But an employee can lose the protection of the Act by engaging in conduct that is so offensive, egregious, or violent as to render him or her unfit for further employment.

The Obama Board issued several decisions that protected employees who used extremely profane or racially/sexually offensive language in the workplace, finding that their employers were wrong to terminate them for their misconduct. The Trump NLRB has been asked to overrule these cases and has, therefore, invited public comments on "whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature." The current Board explains: "The Board's treatment of such language has been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board."

Public comment can be submitted via briefs in the pending case of General Motors LLC by November 4, 2019. If you would like to submit a brief and require assistance, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.