One of the first cases I worked on as a baby lawyer involved a guy who was fired for cussing out his supervisor. The employee’s union claimed that it was really because of his protected union activity; he was simply disagreeing with his boss. Colorfully. Very colorfully. I was tasked to figure out whether the company should rescind the termination. The answer was no: the “Wright Line” test (based on the NLRB’s decision in Wright Line, 251 NLRB 1083 (1980), enf’d., 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982) controlled.
Wright Line held that if there was proof an employee’s protected union activity was a “motivating factor” in the discipline, the burden shifted to the employer to show that it would have made the same decision even in the absence of the protected activity. If so, the employer won. In my case, there was plenty of evidence that you got fired for using the kind of language our hero had used toward his boss, regardless of union membership.
But a few years ago, Wright Line died. The NLRB during President Obama’s administration considered cases “in context.” In an era when dropping the f-bomb is second nature in some work settings (and snark, profanity and general nastiness is all too common everywhere), that approach heartened organized labor. Of course (said unions) there’s no problem if the outburst can be explained because it occurred in an organizing drive or was prompted by claims of an employer’s unfair labor practices. See, e.g., Pier Sixty, LLC, 362 NLRB 505, 506–508 (2015) (finding the employer violated the Act by firing an employee after a Facebook post stating that a certain manager “is such a NASTY M—- F—ER don’t know how to talk to people!!!!!! F— his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”), enf’d., 855 F.3d 115 (2d Cir. 2017). Nice, right? I blogged on this and other similar Board decisions. Go ahead, look ‘em up.
This week, however, the NLRB resurrected Wright Line. Vigorously. In General Motors LLC, N.L.R.B., 369 NLRB No. 127 (7/21/20), the Board stated that it was “overrule[ing] all pertinent cases to the extent they are inconsistent with this holding.” For too long, said Board Chair John Ring, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.” He continued that the decision in General Motors “ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
This decision will spell relief for many employers, lawyers, and the EEOC, all of who have pushed the NLRB to clarify its views. Context, like many other things, is often in the eye of the beholder; it makes after-the-fact second guessing easy, but decision making at the time of the incident decidedly harder. Yet, context is still important.
I recall a number of years back listening to a Q & A with a then-EEOC Commissioner who was asked to help explain when, if ever, an employee’s use of the N-word at work would not result in termination. “It should always result in termination. Period.” she responded. No context needed. (The follow-up question was, by the way, “but what if it’s an almost entirely Black workforce and it’s two Black friends joking with each other.” And silence filled the room).
In recent days, private-sector employers have been taking a harder line on workplace comments that are racist, sexist and otherwise inflammatory. (Just Google “Nick Cannon,” but there are lots and lots more). And, as I have explained many times, whether teaching employment law or holding a Boy Scout Citizenship Merit Badge class, you can say “free speech” and “First Amendment” all you want, but it doesn’t apply to the private sector work place.
The Board’s return to the Wright Line standard does take context into account. An employer will need to prove that bad language was the real reason for discipline, not protected union activity. It also will, one hopes, bring perhaps a just a tad more civility to the workplace. And, in shout-out to Parrotheads everywhere, if you need to curse just go to “Cussin’ Island.”