NLRB alters standard on abusive conduct, profane language at work

The National Labor Relations Board (NLRB) recently modified its standard for dealing with abusive conduct and profane language at work. For years, the NLRB had permitted employees to make offensive, harassing, and racist statements so long as they were uttered while discussing wages, hours, or other terms and conditions of employment. In other words, the vulgar statements were “protected” as Section 7 activity under the National Labor Relations Act (NLRA). Read on to learn about the new standard.

Previous standards caused confusion

To deal with employees’ vulgar and profane conduct, the NLRB had previously applied three different standards, which added to the confusion:

Outbursts to management in the workplace. For outbursts to management in the workplace, the NLRB used the four-factor Atlantic Steel test, which considered (1) the place of the discussion, (2) the subject matter, (3) the nature of the employee’s outburst, and (4) whether the blow-up was provoked in any way by an employer’s unfair labor practice.

Social media posts and at-work conversations. For social media posts and most cases involving employee conversations at work, the Board examined the “totality of the circumstances.”

Picket-line conduct. For picket-line conduct, the NLRB applied the Clear Pine Mouldings standard, which asked whether, under all of the circumstances, the abusive conduct reasonably would have coerced or intimidated nonstrikers.

NLRB’s new standard