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Sterling Employment Law

Does this NLRB ruling promote workplace harmony or punish workers?

A recent Bloomberg article on American work environments notes a view prevalent among business principals that workers have long had too much freedom in publicly lashing out against alleged workplace wrongs. The Bloomberg piece especially spotlights "comments made on social media and during strikes and protests."

Labor advocates and linked pro-worker groups have long argued for a notably permissive standard when it comes to worker criticisms against employers. They say that materially uncurbed speech is especially important when it is in response to alleged company shortcomings in matters ranging from work conditions to management misconduct.

The National Labor Relations Board agrees with the notion of a permissive standard, but with a caveat as revealed in a recent NLRB ruling. In a case unanimously decided last month, a board panel determined that employers need more power - in essence, a longer leash exercised without fear of regulatory or judicial reprisal - when responding to employees' anti-company speech activities.

In a ruling described in the media as "sweeping," the NLRB underscored new rules for gauging whether worker remarks are protected or can be followed through on by an employer in a disciplinary manner. Bloomberg notes that companies can now retaliate - even with firings in some instances - "as long as the government can't prove management was motivated by hostility towards protesting or organizing."

NLRB Chairman John Ring stated the ruling ushers in "a long-overdue change" needed to curb "obscene, racist, and sexually harassing speech not tolerated in almost any workplace today."

Worker advocates understandably take a different view. Criticism was strong and multi-sourced in the wake of the board's ruling. One union principal says that the new latitude granted companies is "a way of thwarting speech and a way of thwarting activism."

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