Protected Speech In The Workplace and Profanity

Protected Speech in The Workplace

By Lauren Amabile Sr. HRBP

The NLRB overruled a 2020 precedent related to the consequences faced by employees who use profane and/or harassing/discriminatory remarks during arguments at work in its May 1st decision in a case involving a manufacturing company based in Texas (Lions Elastomers, LLC.).

An employee of Lions Elastomers participated in a tense and “offensive” confrontation with company leadership over the workplace conditions—considered protected activity by the NLRB, resulting in his termination in 2017. The case was eventually handed to the Board following an appeals process and, at the time, the NLRB considered the dismissal to be unjust and ruled in favor of the employee’s reinstatement.

This ruling is particularly noteworthy for employers, as it returns the NLRB to a position of bolstered protections for workers participating in protected actions under the National Labor Relations Act. Though this recent decision is working its way through the appeals process, it is recommended that companies increase their consideration process when it comes to reprimanding employees for their conduct during disputes related to concerted activity.

The Board recognized in their decision that, while employers are understandably interested in an orderly and considerate work environment and employee relations, disputes related to working conditions can be caustic in nature and therefore, workers should be given grace related to their conduct in the heat of the moment, so as not to infringe on their rights under Section 7 of the NLRA.

According to the 2-person majority opinion, the employee’s behavior and conduct must be reviewed in the context of participating in concerted activity, and not as if it happened during regular business operations.

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