Rachel Lerner
Tue, 05/09/2023
On May 1, 2023, the National Labor Relations Board (NLRB) restored precedent which enhances protections for employees who lose their cool during workplace actions. For decades, the NLRB applied three setting-specific standards to determine whether employers have unlawfully discharged or disciplined employees who engaged in disruptive conduct in connection with protected activity. First, there was a four-factor test which governed employees’ conduct towards management in the workplace. This test considered the nature of the employees conduct and whether the employer provoked it. Second, there was a totality-of-the-circumstances test which governed social media posts and cases involving conversations among employees in the workplace. And third, there was a standard which governed picket-line conduct.
In 2020, in General Motors, the NLRB overruled these context-specific tests in favor of applying one test to all scenarios. The General Motors case adopted the Wright Line test, which is a burden-shifting test in which the employee alleges that the discipline was motivated by the employer’s animus towards protected activity, and the employer contends that it was motivated by legitimate business reasons.
Just three years later, the Board reversed General Motors, and returned to the context-specific tests to determine whether employer actions were unlawful in the context of employee’s actions during protected activity. The Board returned to this method because different circumstances deserve different treatment, and it better ensures that employees can exercise their rights without fear of punishment. The Board stated that “conduct occurring during the course of protected activity must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace conduct.”
If you believe your employer has violated your rights under the National Labor Relations Act, contact MSE at info@mselaborlaw.com.
