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Free Speech or Belligerence? NLRB Reassessing the Threshold for When Otherwise Protected Activity Crosses the Line

For employees boisterously raising employment-related concerns on behalf of a larger group, when might their words or actions be so hostile or offensive that they lose the protections of federal labor law? The National Labor Relations Board (NLRB) hopes to shed new light on this issue soon, as its open-comment period on the subject closes in November. “Section 7 of the National Labor Relations Act protects an employee’s right to engage in protected concerted activities, which includes challenging the terms and conditions of employment, where tempers can rise,” notes David James, a labor attorney at Nilan Johnson Lewis in Minneapolis. “But how far that protection goes is a matter of increasing debate and is susceptible to changes in politics.” James points to cases brought before the NLRB that involve employees swearing and slamming furniture in heated exchanges, disparaging managers and their family members via social media, or making racist comments to temporary replacement workers during a strike as boundary-stretching instances where employees ultimately maintained their protections during the Obama era. But he says the open comment questions posed by the now majority Trump-appointed NLRB hint that important changes may be coming. “Since the 1970s, the NLRB has used a four-factor test to assess the limits of labor protections, and increasingly it has held that if three of the four factors lean one direction, the majority wins,” said James. “However, the nature of the latest board’s questions suggests the possibility that the egregious nature of one’s conduct may override all other factors.” James advises clients who are confronted with such matters to carefully and individually review each case and to recognize that, despite the prospect of a more employer-friendly mindset, labor-related complaints are regarded as naturally more contentious and impolite than other interactions. To speak with David James about NLRA compliance, contact him at or 612.305.7573.

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