NLRB Expands Protections For Employee Abusive Conduct, Returns To Setting-Specific Standards

• Jurisdiction: United States,Federal
• Law Firm: K&L Gates
• Subject Matter: Employment and HR, Media, Telecoms, IT, Entertainment, Employee Rights/ Labour Relations, Social Media
• Author: Mr Michael Pavlick and Taylor Arluck
• Published date: 22 May 2023

INTRODUCTION

On 1 May 2023, the National Labor Relations Board (NLRB or Board) held in Lion Elastomers¹ that whether employers violate the National Labor Relations Act (NLRA or Act) when they take adverse employment action against employees who engage in abusive conduct alongside Section 7 activity depends on the setting where such conduct occurred, such as in the workplace, on social media, or along a picket line, than the nature of the conduct or the employer's motive.

In doing so, the NLRB reversed another Trump-era precedent, which previously held that whether employee abusive conduct lost NLRA protection hinged solely on whether employers harbored an anti-union motive when taking adverse action, regardless of where or when the abusive conduct occurred.

As discussed further below, employers with unionized and nonunionized workforces must again focus on the specific setting of an employee's abusive conduct before determining whether they may legally take adverse action under the NLRA.

EMPLOYEES ENGAGING IN ABUSIVE CONDUCT NOW ENJOY GREATER PROTECTIONS

The question in play here is when activity that might otherwise be protected under Section 7 of the Act loses its protection because of the manner in which the activity was conducted. In General Motors,² the Trump-era NLRB moved away from the Board's prior precedent by holding that conduct lost any NLRA protection it might have enjoyed if it occurred in an abusive manner, e.g., profanity or epithets.

Specifically, General Motors held that it would apply the NLRB's longstanding Wright Line³ burden-shifting causation test in any case where an employer claims to have disciplined an employee for engaging in abusive conduct, regardless of the setting in which the conduct occurred. Thus, under General Motors, an employer only violated the NLRA after taking adverse action against an employee for abusive conduct if the employee could show that the employer took such action because it was motivated by animus against the underlying Section 7 activity.

In Lion Elastomers, the Board rejected General Motors as a "sweeping change in Federal labor law" that failed to account for the "policy rationale" undergirding the Board's setting-specific standards for adjudicating employee abuse cases.⁴ That rationale was predicated on the Board's perception that there is a "fundamental difference" between "employee misconduct committed during Section 7 activity and misconduct during ordinary work." The former, rationalized the Board, will inevitably evoke heightened passions among employees given the nature of labor disputes.⁵ With that justification, the Lion Elastomers Board restored three setting-specific standards, and will apply them retroactively.

First, and most commonly, employee abusive conduct aimed at employers in the workplace is again governed by the four-factor Atlantic Steel balancing test, which examines "(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice."⁶

Second, employee abusive conduct targeting employers on social media or during coworker discussions will once more be adjudicated under a totality-of-the-circumstances test "without reference to...