The National Labor Relations Board continues its efforts to revisit earlier decisions that expanded protections for employees engaged in concerted or union activities. On September 5, the board announced it is soliciting briefs on whether to change its current view on employers’ ability to discipline employees engaged in union activity based on profane or offensive statements. The case at hand involves a request by General Motors for the NLRB to overrule a series of decisions that allow employees a certain degree of protection against disciplinary action relating to offensive statements or conduct in the context of union activity.

The board asked for briefs addressing the question of whether certain racially or sexually offensive comments or other conduct should lose all legal protection regardless of the context in which the statements are made. Also, the NLRB is asking for input on whether workplace norms should have any bearing on protections given to such behavior. Finally, should behavior on a picket line be viewed differently than that in the workplace itself?

As Title VII and other legal prohibitions against offensive workplace conduct have strengthened, an employer’s obligation to prevent racially and sexually offensive conduct has clashed with NLRB protections for employees who engage in some level of otherwise prohibited conduct. If the board overrules its prior decisions, employers could gain substantial ability to discipline and discharge employees who engage in profane or offensive conduct regardless of the context.