NLRB Ends Protection For Obscene, Racist & Sexually Harassing Speech


At a time when abusive speech is becoming more and more a part of public discourse, the National Labor Relations Board (“NLRB”) has given greater power to employers to discipline employees for profanity or sexually or racially offensive speech.

As noted in a January 2018 blog post, the NLRB long held that concerted activities for the mutual aid or protect of employees can be legally protected under the National Labor Relations Act (“NLRA”) even if laced with abusive or offensive language. The NLRB assumed abusive conduct and protected activity were analytically inseparable. For decades, the NLRB adhered to the position that the discipline or discharge of an employee for abusive conduct during concerted activities was an unfair labor practice in violation of the NLRA.

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