The National Labor Relations Board (NLRB) recently restored a more employer-friendly standard for evaluating whether offensive language or behavior violates federal labor law.
Whereas the NLRB previously used setting-specific cases to decide whether a worker engaged in “abusive conduct,” it will now defer to a framework known as Wright Line. That framework, which was referenced in a 2020 case involving General Motors, holds that employers may legally discipline employees for offensive speech if they can show that they would’ve handled it the same way even if the worker’s speech wasn’t protected under the National Labor Relations Act.
The General Motors standard was invoked in a case involving Joseph Colone, an employee with the synthetic rubber manufacturer Lion Elastomers, who was disciplined after raising concerns about working conditions at a safety meeting.
In a Sept. 23 decision the NLRB said it will apply the General Motors standard in order to align with the Fifth Circuit Court’s ruling. The Republican members of the board who voted in favor of the order clarified that they weren’t overruling the 2023 decision that restored the setting-specific test. “We are merely recognizing the court’s holding now that the case is back before us,” they wrote.
What this means for HR. The NLRB’s decision gives employers more leeway in disciplining workers who use profane speech or engage in other offensive behavior on the job.
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