The NLRB’s Standard for Protection of Profane or Offensive Speech
In this episode, we discuss what constitutes protected activity under the National Labor Relations Act, in the context of profane or offensive speech, and how that standard may be changing.
Mary Kate Liffrig
Attorney with Hall Render.
Attorney with Hall Render.
Mary Kate Liffrig: Hello and welcome to Hall Render’s HR Insights for Healthcare Podcast, covering labor and employment law cases and trends for professionals working within the healthcare industry. I’m Mary Kate Liffrig, and I’m an attorney with Hall Render, the largest healthcare-focused law firm in the country. I’m here today with my colleague, Brad Taormina. Brad and I both practice labor and employment law and regularly advise healthcare clients on a variety of labor and employment law topics. Please remember the views expressed in this podcast are those of the participants only and do not constitute legal advice. Brad, thanks for being here today. Before we dive into the substantive portion of our podcast, can you tell me a little bit more about your practice?
Brad Taormina: Sure. Thanks Mary Kate. My practice is focused on labor and employment with a particular concentration on traditional labor issues. Generally, this includes union management relations, collective bargaining, unfair labor practices, labor arbitration and litigation between unions and employers.
Mary Kate Liffrig: Well, perfect. So today we’re going to be talking about something that’s right up your alley, protected activity under the National Labor Relations Act in the context of profane or offensive speech. Can you give us just the basics on the National Labor Relations Act and its protections for employees?
Brad Taormina: Sure. The NLRA is a federal law that applies to private sector employers with or without unions. The act grants employees the right to organize, the right to bargain collectively, and the right to engage in protected concerted activity. That last protection, the protected concerted activity is what leads to the topic that we’re going to discuss today and also leads to a lot of the litigation at the board and generally that allows employees to discuss and complain about the terms and conditions of their employment.
Mary Kate Liffrig: What is the current standard used by the NLRB for deciding whether offensive or profane comments by workers are protected as protected concerted activity under this federal labor law?
Brad Taormina: Well, it actually depends on whether the offensive or profane comments are communicated between an employee and a manager or supervisor or whether those statements are made by one employee to another. So in the context of an employee making comments to a manager or supervisor, the board uses a standard that came out of a case called Atlantic Steel. We call them the Atlantic Steel factors. Those four factors are the location of the activity, where were the statements made, the subject matter of the activity, the nature of the employee’s outburst, and whether the outburst was in any way provoked by an employer’s unfair labor practice. So those are the four factors that the board weighs. The more employees that are around or within earshot of the comments, the less likely they are to be protected.
The context of the conversation, it’s more likely to be protected if it’s taking place on a picket line or in the context of an organizational campaign, less likely to be protected if it’s an employee just airing an individual gripe to a supervisor in the middle of the shop floor.
Mary Kate Liffrig: And under this Atlantic Steel… oops, sorry. Go ahead.
Brad Taormina: If the statements are made by one employee to another employee, it’s a different standard that they use. The board uses a totality of the circumstances analysis and so this analysis encompasses those four same Atlantic Steel factors, but then also considers a number of other factors, whether the employer maintained a rule prohibiting the language, whether the employer generally considers that language to be offensive, whether the statement was impulsive or deliberate, and some other similar standards.
Mary Kate Liffrig: Great, thank you. So under the Atlantic Steel standard and the totality of the circumstances standard, generally speaking, were we seeing that a lot of profane and obscene language was being protected as protected concerted activity or was it applied pretty rigorously such that a lot of that conduct was not protected?
Brad Taormina: Yeah, it was the former. We were seeing that the overwhelming majority of these issues and these cases resulted in the board holding that the comment and the activity were protected. So we had some cases and some of the cases were cited by the board and their invitation to submit briefs in this case, but we saw some pretty egregious cases where employees were making very offensive and egregious comments including comments that could easily be considered to be sexually offensive and racially offensive. And the board was holding that those comments were protected or did not result in losing the protection of the act.
Mary Kate Liffrig: My understanding is that the current standard is under review by the NLRB. And Brad, that’s something you’ve alluded to already during this podcast. Can you tell me about the General Motors case that’s pending right now?
Brad Taormina: Sure. So the complaint issued in the pending case alleged that the employer violated the act by suspending an African American shop steward three times for his conduct in the course of meetings with management. One of the incidents was for cursing out a manager during a contract dispute. One of the incidents was for speaking in what was described as a mock slave voice during an argument with management. And the third incident was for telling a manager that he would quote, ‘mess him up’, unquote, and playing loud rap music with offensive lyrics during a union management meeting. So the case was heard by an administrative law judge.
The ALJ issued a decision finding that the loud offensive music and the mock slave voice lost the employee the protection of the act, that those actions were not protected. And also held that the profanity during the contract dispute with management did not lose the employee the protection of the act. Both parties filed exceptions to the ALJ’s decision, which is how it ended up in front of the board. The board invited interested parties to file briefs in the case and specifically raised the issue of whether individuals who engage in profane outbursts or offensive statements or conduct of a racial, sexual, or otherwise discriminatory nature in the context of NLRA protected activity, whether they lose protection of the act.
And along with that, whether the board should overrule the standards that it currently applies to analyze these questions.
Mary Kate Liffrig: So who has weighed in thus far and what are they advocating for?
Brad Taormina: So a lot of parties have weighed in. There have been a lot of briefs filed. And as you can imagine, there’s a wide range of things being advocated for. Relevant to us, we’ve seen the EEOC weigh in, we’ve seen the American Hospital Association and the Federation of American Hospitals weigh in. And of course we’ve seen the general council for the NLRB has weighed in.
Mary Kate Liffrig: What is the general counsel’s position for what the standards should be in this type of situation?
Brad Taormina: So the GC for the NLRB has argued that the protections under the NLRA should not be interpreted to override or supersede protections provided by the relevant anti-discrimination laws and essentially that the board should overrule current precedent to clarify that employers are allowed to take corrective action concerning harassing conduct in the workplace even if it occurs in the context of otherwise NLRA protected activity.
Mary Kate Liffrig: Oh, interesting. And so you said the EEOC has weighed in as well, since this has to do with delving into the EEOC’s sphere and what counts as discriminatory or abusive language, what’s their position?
Brad Taormina: The EEOC has taken a position fairly similar to that of the GC’s position. The EEOC brief does not argue what standard the board should use or adopt. The EEOC brief first sets forth an explanation of Title VII’s protections and prohibition on harassment. And then similar to the GC, the EEOC brief takes the position that given that employers must address racist or sexist conduct that violates Title VII and may need to do so before the conduct even becomes actionable under Title VII. The EEOC urged the board to consider and adopt a standard that permits employers to address such conduct, including by disciplining employees as appropriate.
Mary Kate Liffrig: Well, interesting. Just from a logical perspective, I can see that employers would be in a difficult position if they were not permitted to take adverse action against an employee who was using language that would be considered harassing or otherwise profane and making other employees uncomfortable. Right? Because we’ve got an obligation to protect our employees and also an obligation to workers to allow them to engage in protected concerted activities. So it’s an interesting question that they’re grappling with. So what about the American Hospital Association? I think you said they also submitted a brief.
Brad Taormina: So the AHA and the Federation of American Hospitals filed a brief to also support overruling the current precedent used by the board asking the board to harmonize the NLRA’s protections with the relevant anti-discrimination and anti-harassment laws similar to what we saw from the GC and the EEOC. But in addition to that, the AHA brief emphasizes the special considerations in the healthcare environment and argues that the board should adopt a modified standard for healthcare settings under which employee conduct that occurs in that setting and that also violates a lawful rule of the employer is not presumptively protected by the act. So this specific healthcare standard that the brief is arguing for would provide more discretion to healthcare employers beyond conduct that could be viewed as discriminatory or harassing and would arguably cover any conduct that violates a lawful employer rule.
So this presumably includes rules against insubordination, solicitation in patient care areas, code of conduct, and other common workplace rules.
Mary Kate Liffrig: Are there groups that advocated to maintain the status quo? I think what we’ve talked about thus far, all of the groups you’ve mentioned are in favor of modifying the standard.
Brad Taormina: Yes, there are of course groups on the other side. Pro labor groups on the other side are advocating to maintain the current precedent.
Mary Kate Liffrig: Got it. So obviously we don’t know what the outcome is going to be here, but looking into your crystal ball, Brad, what’s your sense of what might be coming?
Brad Taormina: Sure. We have a lot of employer friendly decisions that have been issued recently by the current board and I think it’s a pretty safe assumption that our current board is going to likely overrule the current precedent and is going to establish a standard similar to that that the general council is advocating for. So I think we’re likely going to get a standard that protections under the NLRA will not override or supersede protections provided by the anti-discrimination laws and that employers don’t violate the act when they take corrective action against employees for engaging in conduct that could be viewed as contributing to a hostile work environment.
Mary Kate Liffrig: So do you think the healthcare industry is likely to get its own standard?
Brad Taormina: I hope so. I think we’re definitely going to continue to advocate for special consideration for healthcare employers. And I think a lot of the interested groups will continue to advocate for a special standard. We’re not likely to get that standard in this case because it’s not a healthcare employer or a healthcare setting that is currently at issue in this case. So I think we’d be unlikely to have that standard established in this case. But in the past, the board and the courts, including the Supreme Court, have consistently recognized that there are special considerations in healthcare, that the primary function in a healthcare setting is patient care and that there are realities and considerations that need to be taken into account when they’re applying these rules in a healthcare setting.
So I think it is likely down the road that in a relevant and applicable case, we have a good chance of getting a broader and special rule for healthcare employers in healthcare settings.
Mary Kate Liffrig: So Brad, any final thoughts?
Brad Taormina: Yeah, thanks Mary Kate. I’d just like to mention again, and I briefly mentioned this in the beginning, but just as a reminder, these rules that come out of these cases and the National Labor Relations Act itself applies to private employers with or without unions. So whether or not your employees are represented by a union or covered by a collective bargaining agreement, these same rules do apply. So it’s good for all private employers covered by the act to be aware of these rules and these changes in precedent.
Mary Kate Liffrig: Well, great. Well, thank you so much for joining me today. This has been really helpful. As a reminder to our listeners, for more healthcare, labor, and employment law content, please visit our website at hallrender.com. And please subscribe to our podcast. If you’d like to be added to our monthly newsletter, please feel free to send me an email at firstname.lastname@example.org, or you can contact your regular Hall Render attorney.