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Top Five Labor Law Developments for April 2023 - Jackson Lewis

Wed, May 10, 2023 12:00 ET
in Press Release

  1. The National Labor Relations Board returned to its prior standard for analyzing the legality of disciplining employee misconduct related to protected concerted activity. Lion Elastomers LLC II, 372 NLRB No. 83 (May 1, 2023). The Board overruled General Motors, 369 NLRB No. 127 (2020) and reverted to its pre-2020 “setting-specific” standard for determining whether an employer lawfully disciplines employees whose protected concerted activity crosses the line into abusive conduct. While General Motors applied the three-part Wright Line standard — under which the employer can lawfully discipline an employee if it can show it would have taken the same action absent the employee’s protected activity — in all “abusive conduct” circumstances, following its latest decision, the Board will apply one of three different standards. The standard to be applied would depend on whether the conduct relates to outbursts to management, social media posts or conversations among employees, or abusive picket-line conduct. As a result, employers must evaluate different standards in determining whether it can lawfully impose discipline based on the context in which the misconduct occurred.
  1. The Board again reported significant increases in unfair labor practice charges and representation petitions. According to a Board press release, union activity is still on the rise, with both unfair labor practice charges and election petitions increasing at the highest levels in decades. In the first six...


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