The Trump National Labor Relations Board’s (NLRB or Board) new standard for cases where an employee is disciplined for using offensive speech in the course of engaging in protected labor activity may have a very short lifespan. The standard was originally announced in July 2020 in a case involving General Motors and is therefore often referred to in shorthand as the “General Motors standard.” While not a rubber stamp in favor of discipline, the standard is generally considered to provide clearer guidance to employers than the prior patchwork of rules that was dependent on the context in which the employee used offensive speech. New NLRB General Counsel Jennifer Abruzzo therefore has made no secret of her intention to seek a reversal of the General Motors standard at the earliest opportunity.
That opportunity may have arrived. Last week, the U.S. Court of Appeals for the District of Columbia Circuit granted the Board’s request for an opportunity to reconsider a case currently on appeal that involved an employee who was terminated for calling the employer’s owner a “stupid jackoff.” The NLRB’s original decision in the case applied the prior standard for offensive speech cases that predated the General Motors decision. The Board based its request ostensibly on the notion that it intends to reconsider its holding in light of General Motors. But given the new Democratic majority on the NLRB, the case may be a vehicle for the Board to overturn General Motors and hold that its application of the pre-General Motors standard was appropriate.
Bottom Line: The NLRB appears poised to discard the General Motors standard and return to the prior, context-dependent approach to cases in which employees use offensive speech in the course of engaging in protected activity. Employers therefore should exercise caution in such cases to ensure that discipline is consistent with legal restrictions.