In a recent decision, the National Labor Relations Board (NLRB) set a new standard for assessing when offensive language and behavior in connection with protective concerted activity loses its protection under the National Labor Relations Act (NLRA).
 

The NLRA protects employees, union and non-union, from being disciplined or terminated when they engage in protected concerted activity (e.g., union organizing, standing on a picket line, openly discussing wages, hours, and other working conditions).
 

In previous decisions, the NLRB used standards that made it extremely difficult for employers to discipline or discharge employees for using offensive language and behavior while engaged in protected concerted activity, even if employees not engaged in protective concerted activity would have been disciplined or discharged for similar behavior.
 

Under the NLRB’s old standards, employees engaged in protected concerted activity retained the protection of the NLRA, despite the use of racial slurs, sexist language, threats of violence, verbal abuse, and vulgar language, even though this type of behavior would clearly violate an employer’s anti-harassment policy.
 

Under the new standard, which will be used going forward, the union or employees must prove that the protected concerted activity was a motivating factor in the discipline received. Even if it is proven that the protected concerted activity was a motivating factor, if the employer can demonstrate that it would have taken the same action had there been no protected concerted activity, the discipline will be considered lawful and not a violation of the NLRA.

• For example, if an employer would normally discipline employees for making racist remarks or using vulgar language in the manufacturing area, an employee who is making those same remarks or similar language can be disciplined, even when engaging in protective concerted activity.

Alternatively, if an employee engaging in protected concerted activity is disciplined for making racist remarks or using vulgar language, but other employees not engaging in protected concerted activity are not disciplined for the same behavior, any disciplinary action or termination taken in this case would likely be considered unlawful and a violation of the NLRA.


UEA Attorneys are available to assist members with applying the new NLRB standard to situations involving employees using offensive language and behavior while engaging in protected concerted activity as well as other questions members may have regarding their responsibilities under the NLRA.