Last week, the National Labor Relations Board (NLRB) issued a unanimous decision that clarified the standard for when an employer can lawfully discipline an employee for making abusive or offensive statements during union-related activities. This ruling will help employers maintain a safe and respectful work environment.
In issuing its decision, the NLRB abandoned its previous factor-driven standards to determine whether an employer improperly disciplined a union employee. For example, previous standards considered whether the offensive conduct was a result of an employer’s unfair labor practice or whether the use of profanity was reasonable in light of the context—e.g., during demonstrations in picket lines. These murky standards made it difficult for employers to properly discipline unruly employees who were participating in union-related activity. Moreover, the NLRB noted the tension between the labor and employment laws. Specifically, employers have an obligation under employment laws to ensure that the workplace is not a hostile work environment, but the prior standards under labor law allowed employees to engage in profane and offensive behavior at the workplace, so long as it was during protected union-related activity. Accordingly, the NLRB decided to re-adopt the Wright Line standard, which requires proof that a motivating factor in the employer’s decision to discipline an employee was that the employee was engaging in protected activity. If the employee meets that burden, then the employer must show that it would have taken the same action in the absence of the protected activity.
Employers will have an easier (and less confusing) time of ensuring a safe and respectful workplace. Employers should proactively define what constitutes offensive and abusive behavior. Additionally, employers should ensure disciplinary actions are consistent and properly documented.
This document is intended to provide you with general information regarding an NLRB decision concerning employee discipline. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.