Rules Tighten On Protected Speech In Workplace
Labor and Employment Partner Fred Braid was quoted in The Legal Examiner about recent changes to the standards for whether employees can be lawfully disciplined or discharged for offensive behavior. Employees who spew the F-bomb, make sexually unacceptable remarks or racist comments at work – even involving union activities – will no longer enjoy the same protections under the National Labor Relations Act they once did.
Mr. Braid said until now, a lot of weight was given to whether protected activity — union negotiations or pickets, for example — was under way at the time the offensive behavior took place. That will no longer be the case, he said. “This will affect both union and non-union employees.” In a news release on the new decision, the National Labor Relations Board (NLRB) stated, “while these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the act, they often resulted in reinstatement of employees discharged for deeply offensive conduct.” Such decisions were not in line with most workplace norms, it said. The test will now be conducted using the NLRB’s Wright Line case, a precedent set 40 years ago. Section 7 protects employees’ right to engage in “concerted activities for the purpose of collective bargaining.”