WageWatch Ibrief Blog



Strike WorkersThe National Labor Relations Board has extended the time to file briefs in addressing when employees lose the protections of the Act for using coarse or racially offensive language.   Amicus briefs not to exceed 25 pages in length were due this past Tuesday, November 12.  The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 27, 2019.

On September 5, 2019, the National Labor Relations Board requested briefing on whether the Board should reconsider its standards for losing workplace protections under the National Labor Relations Act (“Act”) for profane outbursts and offensive statements made while engaged in workplace labor disputes.  In its notice, the Board invites the public to provide input on whether to adhere to, modify, or overrule the standard applied in previous cases in which profane outbursts and offensive statements of a racial or sexual nature were judged not to lose the protection of the Act.

The Board asks the parties to address either some or all the following questions:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
  2. The Board has held that there should be some leeway to consider the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. To what extent should this principle remain applicable concerning profanity or language that is offensive to others based on race or sex?
  3. If the norms of the workplace are relevant, should the Board consider employer work rules, such as those that prohibit profanity, bullying, or uncivil behavior?
  4. To what extent, if any, should the Board continue to consider context—g., picket-line setting—when determining whether racially or sexually offensive language loses the Act’s protection?
  5. What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

The notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).  The Board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as some within the Board, and members of the public.

Contributed by guest author:  Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs;  www.psb-attorneys.com.

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This entry was posted on Wednesday, November 20th, 2019 at 4:34 PM and is filed under Regulatory & Legal Updates. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.