The National Labor Relations Board (NLRB) issued its decision in General Motors, LLC and Charles Robinson yesterday (July 21, 2020), providing additional certainty to employers seeking to discipline employees for abusive or harassing behavior that occurs while the employee is engaging in protected, concerted activity under the National Labor Relations Act (NLRA).

Previously, the NLRB applied multiple tests to determine whether abusive or harassing conduct by employees during protected, concerted activity could still result in adverse action by an employer, depending upon the type of protected activity the employee was engaged in when the offensive conduct occurred. For example, outbursts by employees during interactions with management in the workplace was analyzed under the Atlantic Steel test, which considered the following factors in determining whether the employee’s conduct was protected under the NLRA: (1) the place of discussion, (2) the subject matter of discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice.

Social media posts and discussions between employees in the workplace, by contrast, were judged based on the totality of the circumstances. Both of these tests led to inconsistent results and made it very difficult for employers to apply conduct standards in the workplace and protect other employees from offensive conduct taken under the guise of protected activity. In addition, offensive conduct by employees on a picket line was analyzed under the Pine Mouldings test, which looked at whether, under all of the circumstances, nonstrikers would have been coerced or intimidated by the abusive conduct. If the answer was no, the conduct was considered protected under the NLRA. As one could imagine, this low standard for what would be considered protected activity at the picket line provided protections in some cases for racially or sexually offensive conduct and language.

The NLRB abandoned this approach in General Motors and adopted a single test to be applied in all situations —the well-known Wright Line test. The NLRB explained that abusive speech and conduct is not protected by the NLRA and that if protected speech or conduct was not a motivating factor in an employer’s decision to discipline an employee, then an employer is well within its rights to take employment actions.

The Wright Line test provides a burden-shifting framework, similar to the one used in employment discrimination cases. Where there has been an allegation that an adverse action was motivated by protected activity, the employee must make an initial showing that (1) the employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the adverse action and the protected activity.

Once the initial showing is made, the burden shifts to the employer to show it would have taken the same action against the employee in the absence of the employee’s protected activity. For example, by showing that it has disciplined other employees for similar conduct in the past. The employee may then show pretext to rebut the employer’s showing that it would have taken the same action absent the protected activity. In applying this test more broadly and using a framework that the United States Supreme Court has adopted in other types of retaliation and discrimination cases, the NLRB sought to make the results in these types of cases more consistent and reliable, while still providing protection for employees engaged in protected, concerted activity under the NLRA.

Notably, the NLRB is also applying the Wright Line test retroactively to all pending matters that raise these types of claims. While it recognized that some employees may have engaged in offensive conduct based on their belief that their conduct would be protected under precedent in place at the time, the NLRB explained that the NLRA never provided protection for abusive conduct and reserved to employers the right to discipline employees for the same. As such, the NLRB stated that any “ill effects [of retroactive application] are outweighed by the potential harm of producing results contrary to the Act’s principles and potentially at odds with antidiscrimination law.”

Employers should welcome this change by the NLRB as it provides some clarity for employers seeking to discipline employees who engage in abusive or harassing conduct in the context of protected, concerted activity. This change may also impact how employers craft work rules related to abusive or harassing conduct going forward.

Ballard Spahr's Labor and Employment Group monitors changes in law and policy at the NLRB and routinely assists clients in navigating issues related to protected, concerted activity including employee discipline for outbursts associated with the same, as well as with providing assessments related to the appropriateness of employer work rules.


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