On May 1, 2023, the National Labor Relations Board issued a decision that returns to the pre-2020 “setting-specific” standards in cases where employees are disciplined for misconduct occurring during the course of activity protected by the National Labor Relations Act (NLRA). In Lion Elastomasters, LLC II, the Board overruled the Trump-era Board decision in General Motors, which analyzed the employer’s motive in taking adverse action against an employee who engaged in misconduct during the course of protected activity.
With General Motors overturned, employers must once again evaluate each situation separately based on the severity of the employee’s misconduct and the context in which the speech occurred. Profane speech, including sexist and racist speech, cannot be grounds for discipline if the speech was made during the course of protected activity unless it is sufficiently severe. Whether profane speech is sufficiently severe depends on the place of the discussion, the subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was in any way provoked by the employer’s unfair labor practice.
Going forward, employers should consider whether an employee’s misconduct occurred while the employee may have been engaged in activity protected by the NLRA. If you have any questions about this Alert, we encourage you to reach out to your Shulman Rogers contact for solutions and recommendations.
