Offensive Speech in the Workplace - Part I: Crossing the Line

In this Labor Law Insider podcast episode, Tom Godar and fellow Husch Blackwell attorneys Sonni Nolan and Kat Pearlstone explore the breadth of National Labor Relations Act (NLRA) protection of employee speech that can be disrespectful, crude or offensive. These protections extend to both the non-union workplace and the unionized workplace. Employers are charged with drawing a line at the workplace, curbing offensive, disrespectful, harassing and discriminatory remarks. These disrespectful remarks can be oral or written, placed on employer-maintained bulletin boards or disseminated through social medial. However, under Section 7 of the NLRA, employees have great latitude to engage in protected speech, even when considered offensive or crude or when it targets individuals or businesses. As both National Labor Relations Board (NLRB) and court decisions reveal, there are many instances when employers, whether dealing with a union-represented or a non-unionized workforce, cannot discipline or terminate an employee for what might otherwise be considered prohibited conduct either in the workplace or impacting the workplace. Oftentimes a protected comment or statement can occur in a non-union workplace when employees are criticizing management or management policies, disrespecting specific managers or owners, or even harassing co-employees. These aggressive and offensive expressions can also occur when a union is attempting to organize in a non-union workplace. An employer’s initial reaction is often to discipline or discharge, consistent with a policy that prohibits such disrespectful or harassing speech. These expressions can also take place when a unionized workforce is engaging in a strike or picketing activity. Indeed, some of these statements can be seen as discriminatory or harassing, based on protected characteristics such as race, but may still receive protection under Section 7 of the NLRA. Employers are called upon to exercise extraordinary discretion in the balancing of Section 7 rights of protected and concerted expression with the rights of employees to work in a place free from discrimination or harassment under federal and state law. This podcast explores many of these issues and reviews both cases as well as practical circumstances in which these questions arise. A companion podcast, to be released in about two weeks, will delve more deeply into the issues of expressions which might be construed as a threat of violence, as well as those made in the social media context. Our expert panelists will then describe when these free speech protections become so disloyal, reckless or maliciously untrue as to lose protection. Kat and Sonni will also assess other cases in which the NLRB may find such obnoxious expression merely to be “protected hyperbole.” This podcast will begin to offer guidelines on recognizing where those lines are drawn, and how to avoid the enormous cost and distraction of serious NLRB litigation focused on employee speech. Importantly, that companion podcast will also explore with greater depth the steps employers can take to curb such expression in the first place, and how to respond to disrespectful and offensive speech, threading the needle of enforcing well-drafted policies and keeping away from violation of employee rights under the NLRA. Stay tuned, and look for that podcast in mid-April.