NLRB modifies its standard for offensive speech

The National Labor Relations Board Tuesday modified its standard for determining whether employees engaging in activity protected under the National Labor Relations Act have been lawfully disciplined or discharged after making abusive or offensive statements, including profane, racist and sexually unacceptable remarks.

The new standard will use a burden-shifting approach to determine whether discipline of an employee was an unlawful response to protected conduct or lawfully based on reasons unrelated to protected conduct. It replaces a variety of setting-specific standards that permitted some leeway for impulsive behavior under particular circumstances (e.g., during encounters with management, exchanges between employees, postings on social media and offensive picket line behavior) and often resulted in reinstatement of employees discharged for deeply offensive conduct. The board determined that the previous standards were out of step with most modern workplace behavioral norms and difficult to reconcile with existing antidiscrimination obligations of employers.

The AHA, joined by the Federation of American Hospitals, last year filed a friend-of-the-court brief in response to the board’s invitation for public input in the case, arguing that employee conduct that occurs in a health care setting and violates a lawful employer rule should be presumptively unprotected by the NLRA. They noted that modifying the standard in this way would be consistent with longstanding congressional and Supreme Court recognition of the unique circumstances that arise in health care settings, and “the importance of safeguarding the tranquility of the health care environment.” They also agreed that the board should harmonize the Act’s protections with relevant anti-discrimination and anti-harassment legal obligations for employers, and that there should not be a separate standard for employee conduct on picket lines.