On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision, Lion Elastomers LLC II, that could make it more difficult to discipline employees for profane outbursts and misconduct in certain circumstances without running afoul of the National Labor Relations Act (NLRA).
The NLRA — which applies to most employers, even if not unionized — generally protects the rights of employees to engage in “protected concerted activity.” The NLRB defines this activity as two or more employees taking action relating to terms and conditions of employment for their mutual aid or protection. This can include discussions with coworkers or management about compensation, workplace safety, union matters and other topics.
Employees can’t be discouraged from or disciplined for engaging in such activities. Things get complicated, however, if discussions get heated, and an employee engages in the use of offensive statements or profane outbursts. In some cases, such outbursts can cross the line from protected concerted activity to abusive conduct and even unlawful harassment, which is not protected by the NLRA — but at what point does this conduct lose the NLRA’s protection? This is an increasingly important question because employers are obligated to provide a safe workplace and need to quickly address potential discrimination and harassment.
The NLRB has used several tests over the years, but in 2020, a NLRB decision, General Motors, narrowed it down to one test. In General Motors, the Board concluded that absent evidence of discrimination, employers may discipline employees for profane outbursts and offensive statements in the workplace, including those of a racial or sexual nature, even when they are made in connection with some other concerted activity. The General Motors decision overruled prior cases that applied different standards in different contexts and gave employers more latitude to discipline employees for offensive behavior.
But the NLRB has been moving away from decisions issued under the previous administration. In Lion Elatomers, the NLRB overturned General Motors and reinstated the prior “setting-specific” tests used to determine when an employee’s outburst is protected by the NLRA. Now, instead of applying a single standard to an employee’s outburst, covered employers must consider the context and various factors before taking disciplinary action.
If the employee conduct at issue was directed toward management in the workplace, the NLRB applies the Atlantic Steel test, which looks at four factors:
- The place of the discussion;
- The subject matter of the discussion;
- The nature of the outburst; and
- Whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
If the conduct was a conversation amongst employees in the workplace or a social media post, the conduct is evaluated under a totality of the circumstances test, considering all relevant context.
Lastly, the NLRB’s decision restores a setting-specific test for picket-line conduct with an analysis of whether non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.
The NLRB’s rationale for returning to the context-specific tests is that it ensures adequate weight is given to the rights of employees under the NLRA and ensures that those rights “can be exercised by employees robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.” The dissenting Board member, however, expressed concern that overruling General Motors would allow workers too much leeway to engage in offensive and/or abusive conduct directed at coworkers and supervisors.
The practical takeaway here is that certain disciplinary actions may come under more scrutiny or potentially violate the NLRA if the offensive or abusive conduct arguably occurs in the context of engaging in protected activity under the NLRA. When considering discipline for employee outbursts, employers should look carefully at the context and content to determine if the employee was engaged in protected activity; for example, whether the employee was talking with other employees, management or posting on social media, and whether the content was related to the terms and conditions of employment.
It’s important to note that the NLRA and the tests described above come into play only if an employee is engaged in protected concerted activity covered by the NLRA. The NLRA does not protect employee outbursts that clearly constitute unlawful harassment, discrimination or other non-protected offensive and/or abusive conduct.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber members can read more about Protected Concerted Activity in Union and Non-Union Workplaces in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
