NLRB Reinstates Protections for Worker Outbursts and Profanity
On May 1, the National Labor Relations Board (NLRB) reinstated three previously used, context-specific tests for analyzing whether an employee’s offensive outbursts were protected under labor law in its decision in Lion Elastomers LLC II.
Before the NLRB’s July 2020 decision in General Motors, the standard for determining whether employees were lawfully disciplined or discharged for offensive outbursts during protected union activity varied based on context. This handful of setting-specific standards for assessing employee outbursts had been developed over many years. There was a test used for encounters with management, another for offensive statements and conduct on the picket line, and a third for profane or threatening social media posts.
That all changed in January 2020 when the NLRB decided General Motors and established a unitary test. Under that decision, the Board departed from the context-specific analyses, instead opting for the well-known burden-shifting framework for mixed motive cases articulated in Wright Line. Many employers welcomed this change, citing greater predictability and leeway to discipline employees engaging in verbally abusive or profane conduct while exercising their rights under the National Labor Relations Act.
But this week, in a 2-1 decision along party lines, the Board reinstated the prior patchwork of context-specific tests, saying that the reversion “ensures that adequate weight is given to the rights guaranteed to employees by Section 7 of the act, by ensuring that those rights can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.”
This decision means that employers must continue to carefully evaluate employee conduct and remarks made in the context of protected union activity.
Please contact Julie Girard or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.
