Twenty-First Century Labor Law: Striking the Right Balance Between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act
Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee conduct loses NLRA protection, highlighting the National Labor Relations Board’s reconsideration and revision of its standards in the General Motors case, July 2020. The Article analyzes the prior context-dependent tests applied by the NLRB to assess whether an employee should lose the protection of the Act, finding these tests more than adequate to balance the important public policies underlying both the NLRA and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of consideration for others. The Article concludes that the Board’s new application of the forty-year-old Wright Line standard to these cases increases management rights and latitude at the expense of hindering employee rights to gather together to discuss and object to problems in the workplace.