Employment / 1 min read
On May 1, 2023, the National Labor Relations Board (NLRB) issued a new ruling concerning an employee engaging in abusive conduct while involved in activity protected by the National Labor Relations Act (e.g., complaining about workplace issues to management, other employees, or on social media, etc.).
The Board’s new ruling limits employers’ ability to police offensive, abusive, and harassing conduct in the workplace and could shield employees from discipline if their misconduct occurs while they are engaged in protected concerted activity.
The decision reinstated the Board’s previous standard, which was in place during the Obama Administration. Under this standard, the Board will consider four factors to determine whether an employer justifiably disciplined an employee who engaged in abusive, but otherwise protected activity. Those factors are:
- Place of the discussion;
- Subject matter of discussion;
- Nature of the employee’s outburst; and
- Whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Considering these factors, there is no bright line rule to determine when an employer can take disciplinary action for misconduct engaged in during protected activity. This may include instances where employees utter profane, abusive, or threatening statements to managers or other employees. With the reinstatement of the previous standard, employers should expect decisions that effectively expand an employee’s protections under the NLRA, even though the employee engaged in misconduct which would warrant discipline if the employee was not engaging in protected activity. Employers should be cautious in disciplining employees engaged in protected activity unless this misconduct is so egregious as to lose legal protection.
The Board also confirmed that, like Title VII, the NLRA is not a general civility code. “[The NLRA] imposes no obligation on employees to be ‘civil’ in exercising their statutory rights.” The Board noted the NLRA recognizes an employer’s legitimate interest in maintaining order and respect in the workplace but emphasized that the employer’s interest must be balanced against the employees’ rights under the NLRA. Moreover, “[t]he Board—not employers—referees the exercise of protected activity under the Act.”