In recognition of the “inequality of bargaining power” between employees and employers, Congress protected workers’ rights to participate in concerted activity as defined by § 7 of the NLRA. Yet employers have long sought to limit the scope of § 7 protections. Now, a set of firings by a Vermont-based company has forced the D.C. Circuit to undertake yet another line-drawing exercise. If the D.C. Circuit agrees with the employer, it may come to the troubling conclusion that certain forms of employee speech — including disparagement and profanity — are not covered by § 7.

Vermont Information Processing Fires Its Employees

In 2022, Vermont Information Processing (VIP) fired four employees for their statements in an employee-made groupchat accessed on company computers. In the groupchat, the employees discussed their dissatisfaction with their salaries and with management. In response, one employee created a spreadsheet of self-reported information about various VIP employees’ salaries. The employee shared the spreadsheet in the chat, writing “so if you wanna ask for a raise you got some reference to see if you’re getting fisted lol.” He then messaged, “I really do hope we can all leave within the next month or two … let’s make a pact that we bring him [a fellow employee] along wherever one of us ends up.” Later, he added, “[W]anna unionize leave a legacy here.”

VIP quickly caught on, gaining access to the spreadsheet. Later that day, the employees in the chat noticed that VIP had remotely locked the computer of the spreadsheet’s creator: VIP’s management had fired him, offering him no basis for the termination other than his “poor attitude.” Upon seeing their coworker go dark, employees messaged, “Assume all chats are public” and “Purge your computers boys.” The following day, VIP fired three additional employees that had been active in the chat, including the employee who had warned others to “purge” their computers.

Vermont Information Processing v. NLRB

Emphasizing VIP’s “almost immediate taking down of the spreadsheet,” the NLRB found that VIP violated its employees’ § 7 rights because it knowingly fired its employees for engaging in the protected concerted activity of compiling the salary spreadsheet. The NLRB also rejected VIP’s argument that the employees forfeited their § 7 rights because they were “disgruntled and job-hunting,” noting that the NLRB has never recognized such an exception to § 7 rights. The NLRB ordered VIP to reinstate the four fired employees.

VIP, however, appealed to the D.C. Circuit, where it denied that it had fired the employees because of their protected concerted activity. Instead, VIP argued that the NLRB should have given more weight to the employees’ chat messages. According to VIP, these chat messages revealed that VIP had fired the employees because of misconduct — specifically, expressing hostility and abusive language towards their employer — and not because of protected concerted activity. 

At oral argument in the D.C. Circuit, a three-judge panel seemed inclined to agree. One judge was skeptical about whether the spreadsheet creator’s statement about leaving VIP and taking coworkers with him was protected. Another remarked, “I don’t see how you get … a ‘Get Out Of Jail Free’ card for saying extremely disloyal and vile things about your employer, just because a minute before, you were saying ‘Unionize, pay us more.’”

A D.C. Circuit decision holding these statements to be unprotected would lead to troubling results. For example, finding such statements unprotected could give employers — not employees — a “Get Out of Jail Free” card by allowing them to lawfully fire employees, who are organizing a union, on the sole basis that the employees’ speech offended the employer.

A Line-Drawing Exercise

It’s clear that stripping protection from all offensive statements is unworkable and would greatly undermine §7 protections. So how much disparaging speech should the NLRA protect, and in what contexts? Employers have legitimate interests in limiting employee speech that disparages management. In certain contexts (though not in all), such comments can harm the reputation of the employer’s business, turn away customers, or reduce productivity by lowering worker morale.

On the other hand, workers have legitimate interests in ensuring that even disparaging comments remain protected. The NLRA recognizes that to obtain better pay and working conditions, workers must organize. And the success of many organizing campaigns depends on the freedom to complain about the employer. Disparaging speech can accomplish something that mere G-rated speech cannot: It can inspire and rouse workers into action where they might have otherwise been disinclined to make a stand.

How to strike the right balance? The Board has taken various, oscillating approaches in the past. For decades, the NLRB evaluated whether employees’ speech was protected concerted activity by looking to the specific context in which the speech occurred. For example, the NLRB had different standards to evaluate speech directed at management, compared to speech delivered on a picket line.

Yet by the time VIP came before the NLRB, these context-specific standards had been abandoned in favor of a more general, motive-based inquiry under General Motors, LLC v. NLRB. In General Motors, the NLRB relied on the Wright-Line standard. Under the Wright-Line test, the NLRB must first show that the employer was motivated to fire the employee in part because of protected activity. If it succeeds, the burden then shifts to the employer to demonstrate that it would have fired the employee absent the protected activity. As such, the NLRB had the burden of demonstrating VIP’s unlawful motivation and showing that the employees’ activity was in fact protected.

Just as the NLRB issued its decision in VIP v. NLRB, the NLRB again changed course: It reversed its decision in General Motors and returned to pre-General Motors context-specific standards. This reversal itself recently came into questionwhen the Fifth Circuit demanded a return to General Motors.

However, the NLRB was right to return to context-specific standards because employee organizing is itself context-specific. Organizing is a fluid, dynamic process that takes myriad forms, from openly discussing salaries to joining a picket line. Likewise, a variety of contexts can inspire an employee to take a stand—her employer could have said or done something to stir her into action, or she could have been motivated to join an ongoing picket because of something that her coworker posted on social media. Under a context-specific test, the NLRB can ensure that speech is protected with the widest scope at the most critical points of employee organizing. 

For these reasons, the NLRB should also reconsider its context-specific standard governing the situation in VIP v. NLRB: employee speech about management in the workplace. Currently, the NLRB evaluates speech about management under a four-part balancing test that leaves ample room for narrowing the scope of protected concerted activity. But employees’ speech about management, delivered in the workplace, is one of the clearest, most sensitive points of employee organizing where the speech concerns working conditions and pay — as it did in VIP v. NLRB. Accordingly, a standard specific to the context of employee speech about management should ensure a wide scope of protection. Only a widely protective standard can ensure that employees may continue organizing to correct the imbalance of power between them and their employers.