NLRB Changes Standard for Employers Disciplining Misconduct

​It will be harder for employers to discipline or fire workers who display offensive conduct while engaged in activity protected under the National Labor Relations Act (NLRA), based on a May 1 ruling from the National Labor Relations Board (NLRB).

For example, the ruling applies to profane, abusive, racist or sexually inappropriate remarks made while striking, picketing, engaging in union activity, or bringing grievances to management as a group. It shows how labor relations laws sometimes conflict with antidiscrimination laws and company policies on employee conduct.

The NLRB overruled a 2020 decision, known as General Motors, which replaced three previous standards that applied to offensive conduct on the picket line, workers' interactions with management and workers' postings on social media and conversations with colleagues. Those previous standards protected some outbursts, depending on the severity of the misconduct and the context in which it took place.

The NLRB's latest ruling reverts to those traditional three standards.

"The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers' rights under the National Labor Relations Act," said NLRB Chairman Lauren McFerran. "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."

In light of the new ruling, employers should "evaluate whether an employee's conduct in the course of otherwise protected concerted activity is so severe that it should be found to lose the [NLRA's] protections," said Jenn Betts, an attorney with Ogletree Deakins in Pittsburgh. "Part of this analysis should involve whether the employee has violated a company policy and/or whether the conduct rises to the legal level of a hostile work environment."

We have gathered a collection of articles on the topic from SHRM Online and other trusted sources.

Dispute Over Working Conditions

The board's latest decision comes from a case involving Lion Elastomers, a Texas-based synthetic rubber manufacturer that disciplined and fired a worker in 2017 after he got into a heated exchange with managers about working conditions. Lion claimed the worker's conduct was so offensive that the firing was warranted, but the board disagreed and ordered the company to reinstate him.

However, NLRB member Marvin Kaplan, the only Republican on the board, said in dissent that the General Motors ruling had struck an appropriate balance between workers' rights to organize and to be free of a hostile work environment.

(Reuters)

Social Media Conduct

The alleged misconduct often occurs in circumstances that are heated and emotionally charged. Employees seeking to exercise their rights and employers attempting to maintain workplace order and discipline are pitted against one other.

Before General Motors, the NLRB held that picket line misconduct is protected unless "it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the [NLRA]." Cases applying this standard have found that picket line conduct is unlawful only if it involves an overt or implied threat or where a physical confrontation is likely.

Likewise, before General Motors, the NLRB applied a "totality of circumstances" standard to misconduct involving social media. This standard analyzed whether social media posts are unprotected on the basis of disparagement or disloyalty to the employer.

(Ohio Bar)

SHRM Supported General Motors Ruling

SHRM supported the General Motors decision to give employers more flexibility to discipline or fire employees for abusive or profane conduct when they are engaging in otherwise protected activity. That ruling required the NLRB's general counsel to first prove that an employee's protected activity was a motivating factor for disciplinary action.

"This is an important victory for healthy workplace cultures and workplace equity, putting behind us a line of labor law cases that protected unprofessional and inappropriate behavior," Emily M. Dickens, SHRM's corporate secretary, chief of staff and head of government affairs, said at the time. "Proper civility, respect, inclusion and tolerance are core values of the modern workforce. Employees simply cannot, and should not, be allowed to use abusive and profane language under the guise of 'concerted activity' and find themselves protected by federal labor law."

(SHRM Online)

Discussing Racism at Work

The NLRB recently confirmed that employers cannot discipline or fire workers for publicly raising concerns about racism in the workplace.

In a Feb. 27 memo, the board concluded that a medical school professor's discussions of racism in the workplace and the medical field were protected concerted activity under the NLRA.

(SHRM Online)

Free Speech Protections

There is no First Amendment free speech protection for private employees in the workplace. Employers generally can fire workers for posting racist content on social media, just as they can fire employees for making racist comments in the workplace. But when disciplining workers for offensive posts, employers need to ensure that they are following state laws and the NLRA, and that discipline is applied consistently, in order to avoid retaliation and discrimination lawsuits. A collective bargaining agreement or employment contract may limit an employer's ability to take disciplinary action based on social media posts made outside the workplace.

(SHRM Online)