By: Jessica Jackler
The National Labor Relations Board’s (NLRB) decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020) modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statement—including profane, racist and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (Act).
Actionable cases involving offensive or abusive conduct in the course of otherwise protected activity will now be decided under a standard requiring it first be proved that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, (for example, showing consistent discipline of other employees who engaged in similar abusive or offensive conduct).
Practice Tip: This NLRB change replaces prior decisions and standards which protected employees who engaged in obscene, racist and sexually harassing speech not tolerated in almost any workplace today. The decision also eliminates conflict between the Act and anti-discrimination laws.