Federal Court Nixes NLRB Protections for Offensive Workplace Conduct

The Fifth Circuit Court of Appeals discarded a recent decision by the National Labor Relations Board which largely prevented employers from disciplining employees for offensive language in the workplace. 

The decision provides employers with more breathing room to manage their workplaces and, once again, highlights the power and willingness of federal courts to check NLRB decision-making. 

Background: The original Board decision in Lion Elastomers made it unlawful for employers to discipline employees for using abusive or offensive language in the course of protected activity (activity that in some away touch upon workplace conditions), unless the language or conduct was especially severe. In practice, under the current Board, nearly all employee conduct is protected activity and almost no language or conduct is severe enough to lose protection. 

The Fifth Circuit decision: A unanimous three-judge panel vacated the Board’s decision in Lion Elastomers. Notably, the same Fifth Circuit had originally sent the case back to the Board in 2020 to apply the previous Board’s standard. Instead, the current Board took the opportunity to create its own new, employee-friendly, standard. In the present decision, the Fifth Circuit chastised the Board for not following its original instructions and for “exceeding the scope of its authority” in doing so. 

The good news: The good news is that Board overreach has once again been stopped in federal court. The Board’s decision in Lion Elastomers could have been used to effectively handcuff employers from meaningfully policing harassment and discrimination in the workplace, potentially in violation of federal anti-discrimination law. The ability to effectively manage workplace civility is even more significant as we head deeper into an increasingly, ah, charged, election season, and the court’s decision to overturn the Board here ensures that doing so won’t run afoul of federal labor law. 

The bad news: Unfortunately, the Board is in the midst of an increasingly stubborn streak during which it has often opted to simply ignore federal courts vacating its decisions. That means that the Board may simply continue to apply the reasoning it created in Lion Elastomers against employers, despite the Court’s decision. 

For more on what is happening at the Board and what it means for employers, check out the latest edition of our NLRB Report here!