By: Cary Burke, Sul Ah Kim, and Olivia Jenkins

Seyfarth Synopsis: Recently, the National Labor Relations Board issued a decision that grants employees broad leeway to make lewd, lascivious, racist, or otherwise inappropriate comments at work, so long as those comments are connected in some way to wages, hours, terms and conditions of employment, or other protected concerted activity under the National Labor Relations Act.  For that reason, employers should tread carefully before doling out discipline on the basis of statements that are uncivil (or worse). 

When seeking to turn Luke Skywalker to the dark side, Emperor Palpatine infamously instructed Luke, “Let the hate flow through you.”  In a striking decision, the National Labor Relations Board (“NLRB” or “Board”) seemingly now offers the same coaching to employees. 

In Lion Elastomers LLC II, 372 NLRB No. 83 (May 1, 2023), the Board overruled General Motors’s (369 NLRB No. 127 (2020)) plain and sensible approach of inquiring into the employer’s motive in disciplining an employee who engaged in misconduct during protected activity regardless of the context, and announced a return to a trio of context-specific standards for determining whether egregious employee misconduct that occurs in the course of protected concerted activity causes the employee to lose the protections of the National Labor Relations Act (“NLRA” or “Act”). Spoiler alert: with limited exceptions for truly wild behavior, it basically doesn’t.  Employers, now, must seemingly tolerate a host of disturbing rhetoric and behavior, such as racist, sexist, or homophobic invective, to the extent such conduct occurs during arguably protected concerted activity, and continue to employ employees engaged in such abusive conduct. To that end, this decision also raises practical questions for employers on how to maintain civility in the workplace while respecting the Board’s seemingly broad and nonsensical view of employees’ protected outbursts under the Act.

Facts and History

For context, the employer in Lion Elastomers I disciplined an employee based on his continued misbehavior during a safety meeting and the investigatory meetings that followed. Specifically, the employee was agitated, continued to interrupt meetings with repeated questions, raised his voice, refused to allow others in the room to complete their statements, attempted to leave the room, and used an accusatory tone when addressing others in the room. In response, the Board’s General Counsel filed a Complaint against the employer, and the Board found that the employer’s decision to discipline the employee violated Sections 8(a)(3) and (1) of the Act. Importantly, the Board found that the employee did not lose the protection of the Act when he raised concerns about the employees’ working conditions (i.e., engaged in protected and concerted activity). The Board then sought an order from the U.S. Fifth Circuit Court of Appeals enforcing its ruling. 

While that application for enforcement was pending, the Trump Board issued its decision in General Motors, wherein it held that an employer can defend against a retaliatory or discriminatory discipline or discharge claim by showing the employee would have been disciplined or terminated even absent their protected concerted activity (i.e., an inquiry that focused on the employer’s motivation). In other words, the Trump Board held that employee discipline and discharges should be evaluated under the traditional Wright Line framework, irrespective of context or setting.

Back To The Context-Specific Standards

This Board in Lion Elastomers II, though, has thrown out the Trump Board’s straightforward analysis (even though the speech content here was arguably permissible under General Motors) and returned to an amorphous standard for evaluating misconduct. Specifically, the Board returned to a trio of setting-specific standards for determining whether the employee who engages in “protected” abusive conduct (1) towards managers in the workplace, (2) towards other employees or on social media, and/or (3) on the picket line loses the protection of the Act. In reality, this new standard essentially allows employees to engage in hateful and even discriminatory rhetoric so long as their actions are bound up in protected concerted activity. While forcefully positing that “rough language” or tough talk permeate the workplace and ought not to offend employers, the Board tacitly acknowledges that race-based or sexually harassing comments made in the course of arguably protected concerted activity now enjoy the Act’s protections. For context[1] and as a reminder of what is at stake, the Board also embraced a return to the days of Pier Sixty LLC (362 NLRB 505 (2015)), in which a prior Board held that the following social media comments about a supervisor were protected, thus insulating the employee there from discipline:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Id (emphasis in original).

Implications for Employers

Top of mind for many employers will be how to comply with federal and state antidiscrimination and anti-harassment laws, maintain civility in the workplace, and enforce certain workplace policies after this ruling.  The Board acknowledges this challenge, but effectively disclaims ownership of a solution to the problem it has created unnecessarily.  It is not difficult to imagine a scenario where an employee hurls racist or gender-based invective towards a manager when discussing, for example, a wage dispute, or when an employee yells sexually harassing remarks towards another employee when discussing a union. That invective could or would likely create a hostile work environment, in violation of Title VII of the Civil Rights Act or state anti-discrimination laws, or even hate speech laws.  Even so, this decision likely would still immunize the employee from discipline or discharge.

Going forward, employers ought to take great care when considering whether and how to discipline or discharge employees for typical out-of-bounds conduct, especially if the conduct is connected to protected concerted activity.  Indeed, this ruling seems to suggest that a sliver of protected conduct provides an employee with a shield to engage in a slew of improper and potentially unlawful behavior, while employees who are not engaged in protected activity yet commit similar misconduct face discipline or termination.  Bottom line, the aggressive and uninhibited current Board appears to value union organizing or other protected activity over a civil workplace and laws that protect workers against unlawful discrimination and harassment and require them to take remedial action against those engaging in such conduct.  And, the tacit encouragement for bad behavior offered by the Lion Elastomers II decision offers incredible latitude for bad actors to violate perfectly normal workplace rules and myriad other laws.   

Contact Seyfarth labor lawyers for advice and training before you have to deal with the implication of the Lion Elastomers II decision in the workplace.

[1] Cautionary Authors’ Note – We chose to use the real words from a real case to demonstrate a point and we apologize for having done so.  But this is not without reason, for if indeed the words used by an offending employee are deemed acceptable by the Board, then it is difficult to imagine it would be inappropriate to repeat them in an article about the Board’s decision.  Of course, the reality is that the words simply are not acceptable in the workplace or when addressing co-workers.