NLRB undermines workplace rules

In the latest of a series of recent decisions, the National Labor Relations Board (NLRB) has decided that a Starbucks rule requiring employees to act in a “professional and respectful manner” and not use “vulgar or profane language” is “presumptively unlawful.” By so doing, the Board has completed a process that severely impairs an employer’s ability to issue and enforce workplace conduct rules. In the process, it has alienated long-time supporters and given fresh fodder to its critics.

First GM reversed

The NLRB had stated from the earliest days of the Biden administration that it intended to reverse many of its predecessor Board’s rulings, especially with regard to what the Biden Board saw as limitations on workers’ protected right to concerted activity—e.g., speech and conduct, usually in support of union organizing. One target was when an employer could discipline an employee for abusive speech—most commonly, racist, misogynistic, and homophobic in nature.

For decades, the Board had given such speech “a pass,” reasoning that particularly in the heat of negotiations or grievance proceedings, unguarded comments were to be expected. In the wake of Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC), progressive Democrats, and numerous jurists made clear their belief that such speech was impermissible, not least because it put employers in the untenable position of permitting under the National Labor Relations Act (NLRA) what would be regarded as illicit conduct under fair employment practices laws.