On Monday May 1, 2023, the NLRB issued a decision that makes it more difficult for employers to discipline or terminate employees who have engaged in “abusive conduct.” This decision, Lion Elastomers LLC II, overturns the Board’s 2020 General Motors decision and requires employers to look critically at the context of abusive conduct before disciplining an employee. The Board’s decision was premised on the principle that to fully protect employee rights, “conduct during the course of protected activity must be evaluated as part of that activity—not as if it occurred … in the ordinary workplace context.”
Employers often encounter situations where employees engage in abusive conduct or outbursts – for instance, employees may use profane language, engage in sexual harassment, or make other inappropriate comments. In general, employees can be disciplined or terminated for these outbursts. However, the employer’s right to discipline the employee becomes less clear if the outburst occurs during protected Section 7 activity (such as striking or during a union organizing campaign). In 2020, the NLRB determined that an employer can generally discipline an employee in this context if it would have treated the employee the same way outside of the protected activity.
The Lion Elastomers decision overrules the Board’s 2020 unified rule. Now, after determining that an employee’s conduct involves protected concerted activity, the employer must consider which of several setting-specific standards might apply to the conduct:
- For conduct towards management in the workplace, the Board considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
- For picket-line conduct, the Board considers whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket line conduct.
- For social media posts and conversations between employees in the workplace, the Board looks to the “totality of the circumstances” surrounding the speech.
In its decision, the Board does not deny that employee outbursts might be profane and offensive. To the contrary, it noted that disputes in the context of discussions about wages, hours, and working conditions “are among the disputes most likely to engender ill feelings and strong responses.” Rather than limiting this type of speech, the Board majority feels that the NLRA gives employees and unions license to use such speech if they believe “such rhetoric to be an effective means to make [a] point.” The Lion Elastomers decision thus brings us back to a time, prior to General Motors, when an employer was more limited in its ability to (for example) fire or discipline a striking employee for yelling racist insults at non-striking employees. See, e.g., Cooper Tire & Rubber Co., 363 NLRB 1952 (2016).
The one dissenting Board member argued that the setting-specific standards yield inconsistent case law and unreasonable results, and do too much to act as a shield for employees engaging in significant workplace misconduct that can cross the line into harassment and hate speech. The dissent noted that an employer’s obligations under these various standards could also conflict with the employer’s obligation to protect employees from discriminatory outbursts – in other words, an employer attempting to meet its obligations under antidiscrimination laws by disciplining an employee who made a racist statement may be required to let the statement slide if it occurs during the context of Section 7 activity. The Board’s controlling decision noted that to the extent such conflicts may exist, they will be addressed in future decisions. It did not provide guidance to employers seeking to navigate these issues in real time.
What does this mean for employers? Ultimately, the NLRB has just made it harder for employers to discipline employees for outbursts when the speech occurs in the context of potentially protected activity. Employers should take care when disciplining an employee who might be considered to be engaging protected conduct, even if that employee has made objectively offensive and inappropriate statements. Employers should also review their policies related to workplace speech, including those related to harassment prevention and social media use.