The National Labor Relations Board (NLRB) has long been able to protect the rights of workers critical of unfair work conditions. This has changed in recent years, along with the weakening of many unions and worker advocacy groups. Now a three-judge panel at the NLRB ruled that it was okay to penalize an employee at GM’s plant in Kansas City. A supervisor told the worker and union representative to keep his voice down in 2017. The black worker responded to the criticism as if he was a slave speaking to his master.

The company suspended the worker for this and other behavior that the employer deemed inappropriate. The man brought claims to the NLRB to challenge the suspension, claiming the company’s behavior was racist. GM claims he was disciplined for being “racially hostile” and his “ad hominem attacks.”

The ruling by three Trump appointees changes the balance further between workers’ right to a safe workplace and the employer striving to further control employee actions and what it deems to be derogatory comments in person and social media. The NLRB had previously allowed derogatory comments as protected on civil rights law.

“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” the agency’s chairman, John Ring, said in an emailed statement. “For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.”

Critics claim that this puts too much power with employers making judgment calls over offensive or aggressive actions or language. It will also make it much easier for employers to fire workers with little or no explanation.

Conflicting laws lead to confusion

Labor law still requires companies to allow workplace agitation, but civil rights law requires them to crack down on anything construed as a hostile workplace. It seems that employers can base decisions on the personal biases of management and ownership, which are different than the average worker.

In light of the increased activism and fear of unsafe working conditions in 2020, this issue will likely continue to be debated on a case by case basis. Those with questions may need to speak with an employment law attorney about their situation’s unique circumstances.