When Employee Outbursts are Protected Speech
NLRB decision “harmonizes” anti-discrimination and labor laws but is likely to be overturned with a change in administrations

by Jessica Folker

If a worker unleashes a torrent of threats and epithets at a manager, makes racist comments toward a coworker or posts profanity directed toward the company on social media, most employers would feel justified in disciplining or firing the employee.

But when such employee outbursts happen on the picket line, during a meeting about pay or work conditions or in the context of other protected, concerted activity under the National Labor Relations Act, employers have to tread carefully to make sure their actions aren’t considered retaliation.

The National Labor Relations Board on July 21 released a decision that will make it easier for employers to defend actions taken against employees for abusive or profane behavior, even if it’s linked to protected activity.

In General Motors and Charles Robinson, the board adopted the Wright Line standard to determine whether an employer’s adverse action in response to a worker’s outburst is unlawful. The standard requires the NLRB general counsel to first prove that the worker was engaged in protected activity and the employer knew about and had animus toward the protected activity. If awareness and animus toward protected activity is established, then the burden shifts to the employer, who must show they would have disciplined or terminated the employee even if there was no protected activity.

“Under the old standards, there was almost a presumption that if the employee was talking about terms and conditions of employment, any outburst was going to be protected unless management could demonstrate that it wasn’t,” said Steven Suflas, senior counsel at Ballard Spahr.

This article appears in the Aug. 3 issue of Law Week Colorado. To read this, and other complete articles, from that issue, order a copy online.