In Lion Elastomers, LLC II, the NLRB overturned General Motors, LLC and returned to “setting-specific” standards in cases where employees are disciplined or discharged for misconduct that occurs when the employee is engaged in protected concerted activity under Section 7 of the NLRA. Protected concerted activity generally includes employees’ discussion of the terms and conditions of their employment, including wages, benefits, hours of work and safety, among other things. The NLRA prohibits employers from retaliating against employees for engaging in such activity.
Under the prior Wright Line test, as stated in General Motors, LLC, the General Counsel had the initial burden of establishing that the protected concerted activity was a substantial or motivating factor in the employee’s discipline or discharge. The burden then shifted to the employer to prove that it would have taken the same action even in the absence of the protected activity. The “setting-specific” standard established in Lion Elastomers applies the following tests for determining whether the NLRA’s protection applies to the employee’s misconduct:
- For Employee Conduct Toward Management—apply the Atlantic Steel Test
- Conduct will be evaluated by: 1) the place of 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.
- Employee Posts on Social Media and Conversations Among Employees in the Workplace
- Conduct will be evaluated under a totality of the circumstances test, considering all the relevant surrounding context.
- Picket-Line Conduct—apply Clear Pine Mouldings
- Conduct will be evaluated with an analysis of whether, under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.
This decision makes it more difficult for employers to discipline or discharge employees for offensive language or conduct in the workplace when the employee is engaged in protected concerted activity.
If you would like assistance establishing compliant policies and procedures, please reach out to the Labor and Employment team.
