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Aug 06, 2020

Q&A: Untangle abusive employee conduct and protected activity

Q&ALabor Relations 

Question: One of our employees posted an abusive and profane message about their supervisor on social media, complaining to coworkers about pay and working conditions. Can we discipline this employee?

Answer: Maybe, if you would discipline other employees for using such language at work. The National Labor Relations Act (NLRA) protects employees who band together to raise concerns about wages, hours, or working conditions, but truly abusive language is subject to normal disciplinary rules. Significantly, the NLRA protections apply to all nonmanagement employees, even those who aren’t represented by a union. This is commonly called “protected concerted activity.” It can apply to social media posts and any other communication that might be directed at other workers.

The National Labor Relations Board recently changed its standard for deciding when it’s okay for employers to discipline workers engaged in protected concerted activity based on the manner in which they make their comments. Previously, there were different standards depending on the situation, such as statements made on social media versus direct encounters with management. Critics said the old standards allowed employees to engage in obscenity, profanity, and abusive personal attacks in many circumstances so long as they were also engaging in protected concerted activity.

However, in a recent decision the Board reverted to its old standard, known as the Wright Line standard. Under this newly reinstated standard, employers no longer have to tolerate many instances of obscene, racist, or sexually harassing speech. Instead, employers may impose discipline for seriously offensive language in expressing protests related to wages, hours or working conditions, as long as the employer can prove it would have taken the same action even in the absence of the protected activity. The employer may do so by showing that other similarly situated employees have been disciplined for the same type of abusive conduct in other situations unrelated to protected concerted activity (General Motors LLC, NLRB, July 2020).

Handling abusive interactions that may also involve protected concerted activity can be tricky. It may be best to walk through any situation with your Vigilant Law Group employment attorney. In addition, check out our Legal Guide, Handling Workplace Protests and Complaints.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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