On Monday, May 1, 2023, in Lion Elastomers, NLRB Case No. 16-CA-190681, the National Labor Relations Board (NLRB or the Board) overturned an employer-friendly precedent dating from 2020 by finding that the termination of an employee for engaging in a profane outburst was "protected activity," and therefore protected by Section 7 of the National Labor Relations Act (NLRA). The NLRA also ordered that the employee be reinstated and receive backpay from the employee's date of termination.
The Lion Elastomers decision affords workers more protection from punishment even when the worker uses derogatory language in the course of exercising the right, under Section 7 of the National Labor Relations Act, to engage in "protected activity." Some common examples of what may constitute protected activity include: complaining to management about wages or benefits, discussing amongst employees of wages, wearing union insignia (under most circumstances), and attempting to organize or campaign for a union.
Under the now abandoned standard, the Board prescribed the use of its well-worn Wright Line test to weigh whether the punishment of workers that engaged in protected activity was fair. The Wright Line test provides for a burden-shifting paradigm similar to the one used in employment discrimination cases wherein the worker has the initial burden of showing that (1) the employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus against...
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