On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision that changes the standards relating to discipline or discharge of workers who cross the line with offensive or abusive conduct while engaging in activity protected by the National Labor Relations Act (NLRA).

In Lion Elastomers LLC II, the Board reversed its 2020 ruling in General Motors LLC, and returned to “various setting-specific” standards for determining when discipline or discharge is lawful for employee misconduct during otherwise protected concerted activity under Section 7 of the NLRA. The Board held that to “fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context.”

Quick Hits

• The NLRB reversed a 2020 ruling that had adopted a burden-shifting test for when an employer has lawfully disciplined or discharged an employee for offensive or abusive conduct.
• This new ruling may complicate disciplining or discharging workers for offensive or abusive outbursts in the context of NLRA-protected activity.
• The Board holds that prior “setting-specific” tests must be applied.

Background

Employers are often confronted with situations in which an employee engages in an outburst or abusive conduct during otherwise protected concerted activity—for example, the use of profane, sexually harassing, or racially inappropriate statements during collective bargaining...

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