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Where Does the NLRA Draw the Line Between Harassment and Protected Activity?
September 01, 2020
As most employers have discovered, Section 7 of the National Labor Relations Act protects employees who engage in “concerted activities for the purpose of collective bargaining,” and it is unlawful for employers to interfere with, restrain, or coerce employees in the exercise of their rights. But how far does the Act go in protecting actions of employees that may also be viewed as discriminatory or harassing? Until recently, the National Labor Relations Board applied different standards to determine whether an employer violated the Act based on where the behavior occurred -- on social media or in communications with co-workers, while picketing, or when speaking with management. The different standards often resulted in confusion for employers, who were left unsure as to whether they should take disciplinary action pursuant to anti-harassment or discrimination policies, or if they would risk violating the Act in these types of situations.
On July 21, 2020, the Board issued a decision regarding whether employers violated the Act if they terminated or otherwise disciplined an employee who made profane and/or abusive comments while engaging in a protected activity, and provided a uniform standard for making the determination. In the decision, General Motors, the Board acknowledged that an issue may arise where an employee’s discipline is allegedly motivated by Section 7 protected activity, while the employer argues that it was motivated solely by the abusive conduct. The Board stated that “abusive conduct that occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself.”
According to the Board, when this type of issue arises, causation is the determining factor, and should be analyzed under the familiar Wright Line standard. The Wright Line case required an initial showing that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proved with evidence sufficient to establish a causal relationship between the discipline and Section 7 activity. Only then will the burden then shift to the employer to prove that it would have taken the same adverse action against the employee because of the employee’s conduct, even if Section 7 activity was not involved.
In short, an employer may, indeed, take adverse action against an employee for abusive, profane, or even racist comments made during activities such as collective bargaining or while on a picket line, but only if it would have done so had the employee not been engaging in a Section 7 protected activity. The Board made clear that, while Section 7 is intended to protect employees’ rights, those rights are not coextensive with abusive conduct. But legal risks still remain, and employers should carefully consider whether employees who behaved similarly, but were not involved in a protected activity, would be subject to the same adverse action as those who were exercising their rights under the Act. Furthermore, employers should be mindful of whether the imposed discipline is proportional to the employee’s behavior, and should always consult with counsel prior to making disciplinary decisions when protected activity is involved.

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Labor & Employment Law Megan W. Mullins