When Is Racist, Offensive Speech OK?

On June 5, the NLRB ordered an employee be re-hired after he was terminated for his “racist, offensive and reprehensible” speech.

As many of you know from my seminars, the hottest area of employment law today is the NLRB decisions. Pursuant to the National Labor Relations Act, an employee is protected from termination if he/she engages in protected (regarding the terms and conditions of employment) and concerted (with other employees) activity. The NLRA does not, however, give employees a right to defame, disparage or otherwise criticize their employer or to engage in discriminatory conduct.

In this recent case, the employee was caught on video saying racist comments to black employees. He was terminated for violating the company’s anti-harassment policy. But the NLRB ordered his reinstatement because he made the comments while he was engaging in protected concerted activity on a picket line! ¬†According to the Administrative Law Judge, the statements most certainly were racist, offensive and reprehensible, but they were not violent in character…coercive or intimidating to the exercise of his NLRA Section 7 rights.

Further, remarkably, the ALJ held that although the company’s anti-harassment policy covers this type of conduct as a terminable offense, the harassment policy makes no reference to conduct on a picket line. So, the employee is protected.

PLEASE make sure that your anti-harassment/discrimination/retaliation training includes NLRB decisions….

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.