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NLRB Changes Stance: Abusive Speech No Longer Tolerated

Hey Compliance Warriors!

I know what you’re thinking. When was abusive speech ever tolerated in the workplace? Well, it isn’t tolerated in just ANY situation. However, in certain circumstances, it was up until about a week ago when the NLRB (National Labor Relations Board) modified its standards on several subjects. Specifically, Section 7 of the NLRB has been a haven for ex-employees in allowing this type of speech. Multiple cases where employees were terminated for hateful speech either in person or via social media had invoked the rights of Section 7 to have their day in court.

If you’re unfamiliar with Section 7 of the NLRB, it “guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” – quoted from nlrb.gov

Former employees were defending themselves, saying that they were fired because of their comments on labor unions, or impassioned speeches that were provoked by management, and not because they were using hate speech and creating a hostile work environment. Regardless of the catalyst, employees’ sexist or racist comments and vulgarities were seemingly being given the OK because of Section 7 protections.

However, in a significant turn of events, a recent General Motors case (General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020)) stated that such abusive, hateful speech should not be protected under Section 7. In essence, would this person’s speech give cause for them to be terminated, regardless of if they’re talking about unionizing, etc.? A statement was released by the NLRB, in partial saying:

“The standard announced today replaces a variety of setting-specific standards—one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings). While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination law.” 

We know that work is stressful for everyone, and we all know that we can be impulsive and say things we don’t truly mean. But that type of talk isn’t for the workplace (or on social media, either). When you’re on the clock, it’s time to button up and be professional. It shouldn’t matter if you’re in an office or on a dig site. Everyone deserves to be treated respectfully and should know how to speak appropriately, even during tough negotiations. If we’re all working towards equality in the workplace, then what is it all for if we can’t be the bigger person and treat others the way we’d like to be treated? Even if the boss or your co-workers aren’t the friendliest or most outgoing, you’ll always catch more flies with honey.


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