The National Labor Relations Board (NLRA) has added some flexibility to discipline or fire employees for conduct that appears abusive when they are engaging in otherwise protected activity under federal labor law.
What does this mean? An employee who uses profane, racist and sexist remarks made while employees were participating in protected activity under NLRA. The burden of proof is that an employer must prove that the conduct was the reason, not the protected activity, that they were disciplined or removed. As with all regulations, laws, consistency in handling employees is always going to be a first look if challenged. Would you discipline or otherwise terminate someone with the same behavior if NOT during a protected activity. If you are my client, the answer would be yes. At least that's how I would guide them.
If we want respectful, healthy work cultures, we need to be able to stop those who don't want to conform to a peaceful workplace free of violence and blatant disrespect. Proper civility, respect, inclusion and tolerance is the name of the game for most employers I would guess. Such behavior is part of a business' core values. Employees simply cannot expect to be allowed to use abusive and profane language under the guise of "concerted activity" and think they are protected under law related.
Do you have a clear code of conduct? Do you have updated policies related to anti harassment, anti discrimination, workplace violence prevention and business owners and managers who role model behaviors that are those desired? If you said no to any of these, please stop and recognize that you are out of whack when it comes to best practices and compliance. Further, training on these topics is also advisable and required as it relates to Anti Harassment in NYS. https://hrwebsource.com/collections/webinars/products/sexual-harassment-prevention-training-for-employees-annual-training-required-in-nys
When is the last time you updated your handbook? This document is so much more important than many recognize and want to admit. It not only keeps you in compliance, assuming you implement the policies appropriately but it clearly communicates expectations to your employees. Many handbooks are not as they should be. So many just say, "yea we have one" but never review it or use it. Then when I come in to help guide them, it is so out of date that that's our first "job" together. The handbook is a document that starts to solidify your foundation for compliance and best practices. When do you update yours last? If not this year, it's out of date now especially with COVID regulations that need to be in place. If you want to see how a comprehensive handbook should "look", it is right here https://hrwebsource.com/collections/employee-handbook
How well do you address employees who are creating difficulty in the workplace? Why do you put this task off? If you are like most, it is because it comes with alot of potential liability and it is difficult to do however that's not an excuse to not do your job as a business owner/supervisor/leader. If you want some strong direction on how to make this a bit easier, consider reviewing this short but detailed set of compliance and best practice guidelines.
Equally important is that you are well versed in how to terminate an employee in an appropriate manner that will reduce risks related. You would be negligent to ignore it, so do it right.
Finally, you should be evaluating performance of employees all year long and this is the number 1 responsibility of any good manager. Here is how to do these effectively.
There are many risks in not handling employees appropriately. There are many risks by no addressing "problem" employee and beyond legal issues, there is much to lose in your high performing employees if you do not hold your end of the bargain and address such individuals.
Here to help guide you! Jbm