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Lindsay M. Massillon, left, and Elizabeth Pryor Johnson, right, of Fowler White Burnett. Lindsay M. Massillon, left, and Elizabeth Pryor Johnson, right, of Fowler White Burnett.

On July 21, the National Labor Relations Board (NLRB) issued a decision that provides employers with guidance on disciplining employees who resort to using profanity, hate speech, or other offensive statements in the workplace while engaged in concerted activity. In General Motors, the board addressed the following key issue: Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the [National Labor Relations Act] [NLRA]? Generally, an employee engaged in concerted activity is afforded protection from any form of reprisal from the employer under Section 7 of the NLRA (the act). An employee may lose this protection, however, if there is evidence that the employee engaged in severe abusive conduct.

Depending on the context of the employee’s speech, the board previously applied different tests: one for when the language is used when talking to a supervisor; one for social media posts/discussions with a fellow co-worker, and another standard when employees are on a picket line.

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