Employees probably just lost the ability to tell their boss to f*** off. When considering an employee’s protected activity, the NLRB recently changed its tune on how it analyzes employer discipline—and an employee engaging in abusive conduct does not have the same protections the employee once did.
The NLRB announced this change of tune in last Tuesday’s General Motors decision. Before General Motors, the NLRB held in numerous cases that an employer could violate the NLRA for disciplining an employee for abusive conduct that occurred while the employee was also engaged in protected activity, even when the discipline was for the abusive conduct and not the protected activity. Some of the more notable decisions in this genre involved discipline of employees for hurling profanity at an owner, posting insulting social media messages about a manager, and yelling racist remarks at a replacement worker.
Moving forward, though, the NLRB has decided to give employers a greater ability to discipline abusive conduct, regardless if it is connected with an employee’s protected activity. In General Motors, the NLRB adopted the Wright Line standard to analyze employer discipline related to protected activity. Under the Wright Line standard, the General Counsel can still allege an NLRA violation when an employer disciplines an employee engaged in protected activity. But now, employers have a more defined ability to rebut this allegation. Employers only need to show that the discipline for an employee’s abusive conduct would be the same under any circumstances, even if the employee was not engaged in a protected activity.
Previously, the NLRB applied a patchwork of setting-specific standards—whether an employer could punish abusive conduct may have depended on whether the employee was negotiating compensation, discussing union representation, or picketing. Now, though, the Wright Line standard applies in all cases. And where these previous standards meant employers often had little recourse—even when an employee was disloyal or used profane, racist, or sexist language—the Wright Line standard gives employers a greater ability to discipline abusive conduct.
For the labor professional, the General Motors decision brings good news—an employer can more readily maintain a civil workspace. Now, an employer can discipline an employee’s abusive conduct with less fear of violating the NLRA. Additionally, the NLRB also plans to apply retroactively the Wright Line standard to all pending cases.
At the same time it gives employers a greater ability to discipline abusive conduct, the NLRB’s decision also highlights an employer’s responsibilities related to any abusive conduct. Equal employment opportunity law requires an employer to take prompt corrective action against any discriminatory or harassing conduct. With this in mind, an employer should be mindful of enforcing existing prohibitions against abusive, harassing, or discriminatory conduct. Employers will not have the NLRB to blame for inaction on this front in the future.
*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.