Did I ever tell you about the employee that called the owner a “f***ing crook”?

He called him an “***hole” and “stupid” too. Then, he told the owner that nobody liked him, everyone talked about him behind his back, and even threatened that the owner would regret firing him if he did.

Sure enough, the company violated the law when it fired him. Seriously.

And how about the time a company unlawfully discharged an employee following a Facebook post stating that a particular manager “is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”)?

Wait, there’s more.

Like that time that a company got its wrist slapped for discharging a white employee after, while picketing, he shouted to black replacement workers: “Hey, did you bring enough KFC for everyone,” and “Hey, anybody smell that? I smell fried chicken and watermelon.”

What in the actual f**k is that s**t?

The National Labor Relations Board is an independent federal agency enforcing the National Labor Relations Act. The Act guarantees the right of most private-sector employees — union or not — to engage in group efforts to improve their wages and working conditions, also known as protected concerted activity. It also prevents private-sector employers in both union and non-union workplaces — from interfering with these rights.

For a while now, the Board’s position has been more or less that employees can run their mouths with impunity all in the name of protected concerted activity, and employers could not discipline them.

Not anymore.

The Board tells employees to clean up their act.

Yesterday, in General Motors LLC, the Board took out the trash and changed the standard for addressing offensive outbursts from employees in the course of protected activity. There are two parts to the new test. Here’s how it works:

1. Initially, the General Counsel must prove that the employee’s protected activity was a motivating factor in the discipline.
2. Then, the employer must prove that it would have taken the same action absent the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.

It’s what is known as a mixed-motive test, not unlike the standard applied in employment discrimination cases. Speaking of which, here’s more from Board Chairman John Ring:

“For too long the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

I’m glad that we finally have this sorted.

But, we have so much more to discuss on Friday at Noon EDT on Zoom.

Y’all nearly crashed Zoom’s servers with all those signups yesterday.

There are still a few spots available for the return of the Friday lunchtime Zoom happy hour. At Noon EDT, my special guest, Stephanie Mensing, Esquire, will join me to discuss COVID-19 litigation. As an employee-rights attorney, Stephanie will offer you a frank, unique perspective on litigation through the eyes of your employees (and their attorneys).

You can register here. And, if you have hypothetical questions that you’d like to ask for a friend, go ahead do that here.