The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That can include raising work-related disputes or complaints. This right extends to all non-management employees, not just those represented by a union. But what if the employee raising specomplaints uses obscene or otherwise offensive language directed at a supervisor? In some NLRB cases, employee outbursts that have included offensive language have been shielded from punishment by the employer because the language was considered a part of protected speech.

The invitation for briefing arises from a recent case in which a worker named Charles Robinson was suspended after a workplace outburst during a discussion about overtime compensation. During the outburst, Mr. Robinson repeatedly directed the f-word at his supervisor. An NLRB administrative law judge (ALJ) ruled that the employer violated the NLRA by suspending Mr. Robinson because he directed the profane outburst during a meeting in which he was engaged in protected activity. In other words, the ALJ ruled that Mr. Robinson’s outburst did not lose the protection of the NLRA. The case is now on appeal to the full NLRB and it is in that context that the NLRB has invited interested parties to weigh in.

In its invitation for briefing, the Board noted that its current standards for treating the type of language used by Mr. Robinson have been criticized as both “morally unacceptable and inconsistent with other workplace laws by [f]ederal judges as well as within the Board.” To that end, it is asking the public to submit briefing about whether three previous NLRB decisions, which extend protection to employees who make profane outbursts and offensive statements of a racial or sexual nature in the course of otherwise protected activity, should be reconsidered. Specifically, the NLRB is asking interested parties to address any or all of the following five questions, paraphrased below:

  1. When should profane language or sexually or racially offensive speech lose Section 7 protection?
  2. The NLRB recognizes that disputes over wages, hours and working conditions are among the disputes most likely to engender ill feelings and strong responses. To what extent should these “realities of industrial life” apply with respect to profanity or language that is offensive on the basis of race or sex?
  3. In determining whether an employee’s outburst is protected, should the NLRB continue to consider the norms of a workplace, especially if profanity is commonplace or tolerated? If the norms of a workplace are indeed relevant, should the NLRB consider employer rules or policies about profanity, bullying or uncivil behavior in the context of Section 7 protection?
  4. Should the NLRB overrule the line of authority that permits certain racially or sexually offensive language on the picket line?
  5. Should the NLRB consider the impact of Title VII and other antidiscrimination laws in addressing whether an employee’s comments are unprotected?

The Board’s invitation for briefing signals a shift from the Obama-era Board’s expansive view of employees’ rights to free speech in the workplace. Although it is unclear how the NLRB will modify the standards for determining whether the NLRA protects certain offensive or inappropriate outbursts, it is safe to assume that a change is coming. As always, we will keep you apprised of any updates.