A ruling by the National Labor Board has made it easier for employers to fire their employees over comments they make on social media.
The National Labor Relations Board has been repeatedly asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activity protected by Section 7 of the National Labor Relations Act.
By way of example, recent scenarios presented to the Board include employers discharging employees who had unleashed a barrage of profane ad hominem attacks against the owner of an employer during a meeting in which the employee also raised concerted complaints about compensation, posted on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation or shouted racial slurs while picketing.
In deciding these cases, the Board has assumed that the abusive conduct and the Section 7 activity are analytically inseparable.
In other words, the Board has presumed a causal connection between the Section 7 activity and the discipline at issue, rendering the Wright Line4 standard—typically used to determine whether discipline was an unlawful response to protected conduct or lawfully based on reasons unrelated to protected conduct—inapplicable. As a result, the Board has not taken into account employers’ arguments that the discipline at issue was motivated solely by the abusive form or manner of the Section 7 activity or that the employer would have issued the same discipline for the abusive conduct even in the absence of Section 7 activity.