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May 2023: NLRB Makes It Significantly Harder for Employers to Issue Discipline for Workplace Outbursts

17 May


Update Applicable to:

All Employers.

What happened?

On Monday, May 1st, the National Labor Relations Board (NLRB) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of protected activity under Section 7 of the National Labor Relations Act (the NLRA).

What are the details?

After the National Labor Relations Board’s recent decision in Lion Elastomers LLC II, the NLRB has now returned to the long-established “setting-specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs under activity otherwise protected under the NLRA. Employers must now carefully navigate two “fundamentally different” classes of employee misconduct:

1) “misconduct during ordinary work,” and

2)  misconduct committed during activities related to their hours, wages, and working conditions.

The U.S. Supreme Court has stated that because labor disputes are often “heated affairs, and that “[f]ederal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.” Similarly, in an earlier NLRB decision, the Board had stated, “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” As a result of the license the Board had given to employees and unions to pursue their Section 7 rights in an aggressive,

and sometimes abusive, manner prior to General Motors, the Board had analyzed each case based on “setting-specific standards that, within limits, treat certain employee conduct as inseparable from the statutorily protected activity during which it occurs.” Lion Elastomers. In regard to actions towards management, the factors relied upon were the:

1. place of the discussion/conduct;

2. subject matter of discussion;

3. nature of employee’s outburst; and

4. whether the outburst was provoked in any way by the employer’s unfair labor practice.

It is important to note that the NLRA and the tests described above come into play only if an employee is

engaged in protected concerted activity covered by the NLRA. The NLRA does not protect employee

outbursts that clearly constitute unlawful harassment, discrimination or other non-protected offensive and/or abusive conduct.

For more information, please see the links below:

NLRB Links: 


Employee Rights

Protected Concerted Activity

Summaries and Law Firm Articles/Opinions:

Article 1; Article 2; Article 3; Article 4; Article 5

What do employers need to do?

Employers should review the links above to further understand the implication of this decision. Review your current policies, including your code of conduct policy and non-harassment policy and speak to your employment attorney regarding its application in such circumstances. It is understood that employers may discipline employees for profane attacks and threats, posting social media attacks, shouting racist epithets at other employees, or carrying signs sexually harassing a particular employee when committed in the ordinary course of work. However, employers may not discipline employees for the same misconduct if the misconduct is linked to efforts to improve their terms and conditions of employment. Law Firm’s opinion of what employers can do now: Link Because this was based on a court decision, questionable employer decisions may result in legal exposure. Therefore, employers should seek legal counsel before they take any disciplinary action against an employee that may possibly be exercising their protected concerted activity rights under the NLRA.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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