For decades, the NLRB and the courts have recognized that the unequal position of employees and their employer creates strong feelings and that shop talk is not the language of “polite society.” Until now, offensive and vulgar language made during the course of protected activities did not remove the protections of the Act unless they were so “flagrant, violent, or extreme as to render the individual unfit for further service.”
In General Motors, the Board changed the current standard that considered the circumstances, an employee’s protected activity, and an employer’s unfair labor practice charges in considering whether the employer may lawfully discipline an employee for offensive language. In this case, the Board made it easier for an employer to now establish that it would have disciplined employees for alleged offensive conduct even if the employees had not engaged in protected activity, and that such termination is lawful.