Legislative lowdown: NLRB restores employer-friendly standard for evaluating offensive speech, behavior

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 2023 the NLRB overruled the General Motors decision and returned to the “setting-specific” test, which analyzes outbursts based on whether they occurred in the workplace, on the picket line, or on social media (that standard dates back to the late 1970s). But the Fifth Circuit Court of Appeals vacated that decision in 2024.

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.

How the board evaluates future cases will hinge on a number of factors, including whether an employer can pinpoint a specific example of misconduct, and show that it violated a “neutral workplace rule” that would exist regardless of whether a worker’s speech was protected, attorneys with law firm Ogletree Deakins wrote in a blog post.

In light of the way the NLRB will be evaluating these cases, the attorneys recommended avoiding using language that suggests “frustration with union activity, grievance activity, group complaints, or other protected concerted activity” when disciplining workers.

This is one of the first major decisions handed down by the NLRB since it secured a Republican majority with the confirmation of James Macy this August.

In a dissent, member David Prouty took issue with the board’s departure from the NLRB’s longstanding policy of “non-acquisence,” or the practice of making its own legal decisions, regardless of how the courts have interpreted the law. Prouty is the only Democrat currently serving on the NLRB.

The NLRB could still revisit the General Motors standard in future cases, so HR pros should keep an eye out for updates to this end.