Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act

12 William & Mary Business Law Review 167-218 (2020)

52 Pages Posted: 19 Jun 2020 Last revised: 22 Dec 2020

See all articles by Christine Neylon O'Brien

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: May 26, 2020

Abstract

This article outlines the current state of the law regarding conduct that, while otherwise protected by Section 7 of the National Labor Relations Act, nonetheless involves workplace profanity or offensive speech that potentially violates employer civility rules and equal employment opportunity laws, whether at work, on social media, or on a picket line. The paper considers recent appellate court and National Labor Relations Board (NLRB) decisions on this important issue, highlighting the NLRB’s own reconsideration of its standards as announced in its call for amicus briefs in the General Motors case, September 2019, and the NLRB's 2020 resolution of the GM case. The author recommends a solution that balances the important public policies underlying both the National Labor Relations Act and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of respect and consideration for others, whether in or out of the workplace or on social media.

Keywords: Profanity, racial and sexual slurs, harassment, protected concerted activity, Section 7 rights, National Labor Relations Act, National Labor Relations Board, equal employment opportunity laws, work rules, progressive discipline, General Motors

JEL Classification: J50,J53, J70, J71, J78, J70, J80, J81, J83, J88, K31, K40, K42

Suggested Citation

O'Brien, Christine Neylon, Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act (May 26, 2020). 12 William & Mary Business Law Review 167-218 (2020), Available at SSRN: https://ssrn.com/abstract=3610773

Christine Neylon O'Brien (Contact Author)

Boston College - Carroll School of Management ( email )

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Business Law Department
Chestnut Hill, MA 02467
United States
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