This Just In ...
The National Labor Relations Board may be prepared to revise some Obama-era policies that protect employees from disciplinary action when using profanity while engaged in union activity.
Attorneys representing employers are asking for the changes because they say that the language used in these matters can often be quite explicit, disrespectful and outright insubordinate.
Under the Obama administration, "the NLRB really went overboard in finding any type of complaint or criticism of an employer to be protected activity for which you cannot terminate an employee," said Christopher V. Bacon, counsel, labor and employment, with Vinson & Elkins LLP in Houston, who litigates employment matters on behalf of private employers, according to Business Insurance.
In the cases under review by the NLRB, much of the language is "pretty explicit, including using the ‘f’ word." according to Kenneth J. Yerkes, a partner with Baker & Thornburg LLP in Indianapolis. "It was not just low-level profanity. It was personal, and it was direct."
"There's really a commonsense border" beyond which an employee violates not only company policy but potentially other laws, he said. This kind of language can become blatant sexual or racial harassment in violation of Section VII of the 1964 Civil Right Act, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. This can place a company in a difficult position.
Labor attorneys disagree with any attempt to change NLRB policy in this regard. "A change will chill employees from working together to enforce their rights." New York-based solo practitioner Joshua Parkhurst, who represents workers, told Business Insurance, "I don't think the Obama administration went too far."
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