By Tim Murphy

The days of hiding behind the National Labor Relations Act (NLRA) after telling your boss to take the job and shove it may be numbered. The National Labor Relations Board (NLRB) signaled as much when it issued a notice on September 5 calling for briefs on whether it should change the standards it applies when considering whether extremely profane or racially offensive speech loses NLRA protection. Briefs, which cannot exceed 25 pages in length, must be submitted by November 4, 2019 to the NLRB in Washington, D.C.

The NLRB has requested the briefs to help it decide a pending case, General Motors LLC, dealing with whether an employer violated the NLRA when it suspended an employee, who while engaged in union activity told his boss to “shove it up [his] #@!&ing  #ss.” The NLRB requested that any briefs submitted should address these issues:

1. When should profane or sexually or racially offensive language lose NLRA protection?;
2. Should any leeway be granted to employees who use racially or sexually offensive speech in the course of activity covered by the NLRA?;
3. Should the norms of the particular workplace where the profane or sexually or racially offensive language occurs matter?;
4. Should NLRB precedent dealing with sexually or racially offensive language on picket lines change? And, if so, why?; and
5. How should the NLRB balance an employer’s duty to comply with anti-discrimination laws with the employer’s duty to protect employees in exercising their NLRA rights?

For important background on the issue, including advice to employers, read Tammy Binford’s great article in HR Daily Advisor here. (Full disclosure: I’m quoted in it.)

We’ll keep you posted on what happens on this.  I swear.