NLRB Changes Legal Standard On Discipline For Offensive Or Abusive Outbursts

You may remember that in 2023, during President Biden’s administration, the National Labor Relations Board (NLRB) made it more difficult for employers to lawfully discipline employees who engaged in unprofessional, abusive, profane or offensive conduct during the course of activity protected by Section 7 of the National Labor Relations Act (NLRA). The NLRB has now reversed course and returned to the commonsense standard adopted in 2020, via the case of General Motors LLC. This is good news for all employers. 

First, remember that Section 7 of the NLRA, which protects concerted activity by employees to improve their terms and conditions of employment, applies to all employers. Second, employees engaged in protected concerted activity (e.g., complaining about their terms and conditions of employment) should not be disciplined. Third, the NLRB permits employees a good deal of latitude in protected concerted activities, recognizing that emotions can run high when it comes to labor relations. 

Employers do not, however, have to ignore conduct that is abusive, discriminatory, offensive, or violent in clear violation of its conduct policies. When this type of conduct is at issue, discipline can be issued. In 2020, in the case of General Motors, the NLRB decided it would evaluate these cases under the same Wright Line standard it uses for other discipline cases. 

Under the NLRB’s Wright Line standard, the employee must show that he/she engaged in Section 7 activity, the employer knew of that activity, and the employer acted with animus toward that activity such that there is a casual link between the protected activity and the discipline. To avoid liability, the employer must then show that it would have taken the same action even absent the protected activity. 

Employers operating under this standard want to ensure that they are recognizing and protecting the employee’s right to engage in concerted activity and are only taking action as to the conduct that is offensive, abusive, harassing/discriminatory, or violent/threatening. Thus, identifying and separating the problematic behavior, demonstrating that it violates a clear and known conduct rule, and showing consistent discipline to others for similar misconduct will now be the keys to defending discipline in this type of an NLRB charge. 

Nevertheless, this remains a complicated area of the law which requires application of several different legal concepts. KZA attorneys are always available to help you analyze situations involving protected concerted activity before you make a final discipline decision.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.