Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About

Trending Topics

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni

    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor & Employment
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations

    Industries

    View All

    • Cannabis
    • Consumer
    • Energy
    • Entertainment
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Non Profit
    • Real Estate
    • Technology

    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    1. Home
    2. Insights
    3. Alerts
    4. NLRB to reconsider whether profanity is protected activityAlerts

    Alert / Employment Law Alert

    NLRB to reconsider whether profanity is protected activity

    Nov 12, 2019

    Share

    By Stephanie Caffera

    The National Labor Relations Board may be reconsidering whether the use of profanity or racial slurs is “protected activity.”

    In recent years, the National Labor Relations Board has issued several controversial decisions holding that employees who used extremely profane or racially offensive language did not lose the protection of the National Labor Relations Act—and therefore could not be fired or disciplined for their conduct. We wrote about one of those cases previously. (You can read the previous alert here).

    The NLRB has come under fire for those decisions, especially because some of their rulings have protected conduct that otherwise would be considered discrimination or harassment based on race or ethnicity. Other rulings have allowed conduct that, in any other context, surely would warrant termination. These rulings have undermined the ability of employers to promote “respectful” workplaces at the very time that the broader culture increasingly emphasizes the need for civility and respect of all individuals in the workplace. Employers have found themselves on the horns of a dilemma: to punish the conduct and risk violating the National Labor Relations Act or allow the conduct and risk violating Title VII of the Civil Rights Act of 1964.

    The current NLRB has invited the public to comment on how they should balance the rights of employees who engage in “concerted activity” and the rights of employers to enforce policies on workplace civility, non-discrimination, and non-harassment. The public is invited through November 12, 2019 to submit briefs concerning how the Board should handle the issues raised by the following cases: Plaza Auto Center, 360 NLRB 972 (2014); Pier Sixty, LLC, 362 NLRB 505 (2015); and Cooper Tire, 363 NLRB No. 194 (2016). The Board will be accepting responsive briefs through November 27, 2019.

    We will report on how the Board resolves this conflict.

    Practices

    Labor & EmploymentLabor & Employment LitigationLabor RelationsWorkplace: Policies, Procedures & Training

    Insights And Happenings

    • Alert

      Watch your language!! Profane outbursts, threats to supervisors, and racist and sexist remarks are no longer “protected” by the NLRA

      July 24, 2020
    • Alert

      NLRB publishes new rule on joint employer test under the NLRA

      March 3, 2020
    • Alert

      The NLRB overrules longstanding Board Law regarding union access to employer’s public spaces

      June 19, 2019

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • © 2023 Nixon Peabody. All rights reserved
    • Privacy Policy
    • Terms of Use
    • Statement of Client Rights
    • Supplier Diversity Program
    • Nixon Peabody International LLC
    • PAL