Most people detest conflict in the workplace. And when it culminates or manifests via an employee outburst, it can drain morale and even lead to legal headaches. These situations often result in employee discipline. The National Labor Relations Board (NLRB or Board), however, issued a decision in 2023 that protected certain outbursts by employees — i.e., employees couldn't be disciplined for such conduct under certain circumstances. Good news: that precedent was overruled by the Board on Sept. 23.
The NLRB overruled the case in light of a federal appeals court determination that the 2023 decision was invalid. Under the prior precedent, the Board said employees, depending on circumstances, cannot be disciplined for certain outbursts, even if they used profane and abusive language. Specifically, if an employee was engaged in “protected activity” (e.g., complaining about working conditions on behalf of others, etc.), then the NLRB gave them more leeway in terms of aggressive conduct towards management.
That standard rendered some maddening results, such as in one case where the NLRB forced a company to reinstate an employee who called his boss a “f***ing motherf***er,” a “f***ing crook” and an “asshole.” (Swearing at the boss is protected activity, says NLRB | Human Resources Director) Ouch!
Needless to say, outcomes like that caused significant concern in the world of HR and labor relations. Indeed, it's hard to reconcile how outbursts like that are not in violation of harassment or other policies — let alone common sense expectations for appropriate workplace conduct.
The NLRB will now take a different view of cases such as these, and employees likely won't get as much leeway to do things like cuss out their managers, regardless of any alleged “protected activity.”
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