NLRB Announces New Employee Discipline Standard

In recent years, the National Labor Relations Board (“NLRB”) has been asked to decide whether employers (whether unionized or non-unionized) have unlawfully disciplined or fired employees who engaged in abusive conduct when engaging in activity protected by Section 7 of the National Labor Relations Act (“NLRA”). Section 7 protects an employee’s right to engage in “concerted activity,” which is “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” Examples of such protected activities include union organizing and employee discussions about pay, working conditions, or safety issues.

The cases that have been before the Board in recent years have involved terminations of employees who: (1) called the owner of the employer a “f***ing crook” and an “a**hole” during a meeting in which the employee also made concerted complaints about compensation; (2) called her manager a “nasty mother f***er” in the same social media post in which the employee promoted voting for union representation; and (3) made racial slurs against another individual while picketing. In these types of cases, the Board has presumed that discipline based upon abusive conduct connected with Section 7 activity is unlawful unless it determines (under various setting-specific standards) that the conduct is so abusive that it has lost the NLRA’s protection. These setting-specific standards have resulted in unpredictable outcomes for employers.

In its decision in General Motors LLC, 369 NLRB No. 127, which was issued earlier this week, the Board announced that employee discipline in these types of cases would be analyzed under its familiar burden-shifting Wright Line framework. Under this framework, the General Counsel must make an initial showing that: (1) the employee engaged in Section 7 activity; (2) the employer knew of that activity; and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. If this burden is met, the employer can avoid liability by proving that it would have taken the same disciplinary action even in the absence of the Section 7 activity.

By replacing a setting-specific standard with a universal standard, the Board has given unionized and non-unionized employers more flexibility to discipline employees who engage in profane, racist, and sexually harassing speech, even if such speech is made in the context of protected concerted activities. For questions about this or any other labor and employment topic, please don’t hesitate to contact the attorneys at Hoffman & Hlavac.  To continue to stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.