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NLRB Seeks Feedback on Whether Profane and Offensive Language is Protected by Federal Labor Law

The National Labor Relations Board (NLRB) is inviting businesses to weigh in on the issue of whether federal labor law protects employee’s who use profane outburst and offensive statements at work.

Earlier this month, the NLRB board voted 3-1 to invite amicus (“friend of the court”) briefs in a matter involving General Motors, where the administrative law judge (ALJ) found the company violated the NLRA by suspending a worker who directed profanity and other offensive outbursts toward his supervisor during a meeting in which the worker allegedly was engaging in union activity. The ALJ found the worker’s conduct was not so “threatening or so opprobrious as to lose the protection of the act.” Historically, the NLRB has used a four factor test to determine whether misconduct in the course of otherwise protected activity loses protection under the NLRA. The NLRA bars employers from punishing workers for “engaging in concerted activities for the purpose of…mutual aid or protection.”  General Motors has asked the labor board to overrule NRLB precedent which “addressed circumstances in which extremely profane or racially offensive language was judged not to lose the protection of the Act.”

The board’s invitation for comment reads as follows: “the board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as within the Board….Mindful of this criticism, the board now invites the parties and interested amici to file briefs to aid the Board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who utters them the protection of the Act.”  The board will accept amicus briefs not exceeding 25 pages in length on the NLRB’s website by November 4, 2019.

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