The National Labor Relations Board (NLRB) has released its decision in General Motors, LLC and Charles Robinson yesterday (July 21, 2020), providing additional certainty for employers seeking to discipline employees for abusive or harassing behavior that occurs while the employee is engaging in concerted and protected activity under the National labor relations (NLRA).

Previously, the NLRB applied several tests to determine whether abusive or harassing behavior by employees during protected and concerted activity could still result in adverse action by an employer, depending on the type of activity. protection in which the employee was engaged at the time the offensive behavior occurred. For example, employee outbursts when interacting with management in the workplace have been analyzed under the Atlantic Steel test, which considered the following factors to determine whether the employee’s conduct was protected by the NLRA: (1) location of discussion, (2) topic of discussion, (3) nature of outburst of the employee and (4) whether the explosion was in any way caused by the unfair labor practices of the employer.

Social media posts and discussions among employees in the workplace, on the other hand, were judged based on the totality of the circumstances. These two tests yielded inconsistent results and made it very difficult for employers to enforce standards of conduct in the workplace and protect other employees from offensive behavior caught under the guise of protected activity. In addition, the offensive behavior of employees on a picket line was analyzed from the perspective Pine moldings test, which examined whether, under all circumstances, non-strikers would have been coerced or intimidated by the abusive behavior. If the answer was no, the conduct was considered protected under the NLRA. As one might imagine, this low standard for what would be considered protected activity on the picket line offered protections in some cases for racist or sexually offensive conduct and language.

The NLRB abandoned this approach in General Motors and adopted a single standard to be applied in all situations — the well-known Wright line test. The NLRB explained that abusive speech and conduct is not protected by the NLRA and that if protected speech or conduct was not a motivating factor in an employer’s decision to discipline an employee, then an employer is well within its rights to take employment action.

the Wright line provides a burden-shifting framework, similar to that used in employment discrimination cases. Where there has been an allegation that an adverse action was motivated by a protected activity, the employee must make an initial demonstration that (1) the employee was engaged in a protected activity, (2) the employer was aware of that activity and (3) the employer had animus against the protected activity, which must be proven by sufficient evidence to establish a causal connection between the adverse action and the protected activity.

Once the first demonstration has been made, the onus is on the employer to demonstrate that it would have taken the same action against the employee but for the employee’s protected activity. For example, showing that he has disciplined other employees for similar conduct in the past. The employee can then present a pretext to refute the demonstration of the employer that he would have acted in the same way in the absence of the protected activity. By applying this test more broadly and using a framework that the United States Supreme Court has adopted in other types of retaliation and discrimination cases, the NLRB has sought to make the results in these types of cases more consistent and reliable, while providing protection for employees. engaged in a protected and concerted activity under the NLRA.

Notably, the NLRB also applies the Wright line retroactively test all pending cases that raise these types of claims. While acknowledging that some employees may have engaged in offensive behavior because of their belief that their behavior would be protected by precedent in effect at the time, the NLRB explained that the NLRA never provided protection for a abusive behavior and reserved employers the right to discipline. employed for the same. As such, the NLRB has stated that any “adverse effects [of retroactive application] are outweighed by the potential harm of producing results contrary to the principles of the law and potentially in conflict with anti-discrimination law.

Employers should welcome this change made by the NLRB as it brings some clarity to employers seeking to discipline employees who engage in abusive or harassing behavior in the context of protected and concerted activity. This change may also affect how employers develop workplace rules around abusive or harassing behavior in the future.