Rolled back: NLRB overrules precedent allowing abusive language toward managers

Most people detest conflict in the workplace. And when it culminates or manifests via an employee outburst, it can drain morale and even lead to legal headaches. These situations often result in employee discipline. The National Labor Relations Board (NLRB), however, issued a decision in 2023 that protected certain outbursts by employees—i.e., employees couldn't be disciplined for such conduct under certain circumstances. Good news: The Board overruled that precedent on September 23.

Board mutes Lion’s roar

The NLRB overruled its previous ruling in Lion Elastomers LLC in light of a federal appeals court determination that the 2023 decision was invalid. Under the prior precedent, the Board said employees, depending on circumstances, cannot be disciplined for certain outbursts, even if they used profane and abusive language. Specifically, if an employee was engaged in “protected activity” (e.g., complaining about working conditions on behalf of others, etc.), then the NLRB gave them more leeway in terms of aggressive conduct toward management.

That standard rendered some maddening results, such as in one case where the NLRB forced a company to reinstate an employee who called his boss a “f***ing motherf***er,” a “f***ing crook,” and an “asshole.” Ouch!

Takeaway for employers