NLRB Finds That Offensive Workplace Speech May Still Be Protected

August 13, 2018

Just when employers thought they were safe to restrict offensive speech and restore decorum in the workplace, a recent decision by the National Labor Relations Board (NLRB or Board) serves as a stark reminder that offensive workplace speech may still find protection under the National Labor Relations Act (NLRA or Act). The NLRB has held that an employee who wrote the words “whore board” on an overtime sign-in sheet was engaged in protected activity by protesting unilateral employer changes to overtime scheduling. Although the Board characterized this language as “harsh and arguably vulgar,” the Board was not concerned about this gendered language and how the use of the word “whore” to describe those with whom one disagrees is ultimately corrosive and detrimental to the cause of women’s equality in the workplace. While the recent shake-up of Board members has made the NLRB's stance on many handbook policies more employer friendly, employers should have their Employee Handbooks and HR practices reviewed at least on an annual basis by SESCO to ensure compliance.