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July 27, 2020

NLRB Changes Rules Governing Abusive, Profane Language In The Workplace

On July 21, the National Labor Relations Board (NLRB) announced that it has overturned employee handbook rules that had prevented employers from taking action if employees engaged in abusive speech while on the job.

Previously, the NLRB had ruled that employees could not be discharged or disciplined for using abusive, vulgar, or profane language in the workplace. That ruling effectively expanded National Labor Relations Act (NLRA) protections to cover abusive speech.

In a press release, NLRB Chair John Ring said, “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace. For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision … ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

The Metals Service Center Institute’s partners at the Coalition for a Democratic Workplace had filed an amicus brief calling for this change. The brief argued:

  • Some forms of employee misconduct are so egregious they should forfeit the protections of the NLRA;
  • Employers should not be required to tolerate insubordination;
  • The “norms of the workplace” should not be used as an excuse to tolerate harassment, bullying, and incivility in the workplace;
  • The NLRB should abandon any standard that protects sexual or racially offensive language that would otherwise not be tolerated in the workplace simply because it occurs during picketing; and
  • The NLRB should afford great weight to civil rights and antidiscrimination laws when determining if an employee’s misconduct loses the protection of the NLRA.

Chairman Ring also discussed this decision in a recent Wall Street Journal column.