On May 1, 2023, the National Labor Relations Board (NLRB) issued its decision in Lion Elastomers, 372 NLRB No. 83 that makes it more difficult for employers to discipline workers who engage in profane outbursts and abusive workplace conduct in connection with “protected concerted activity” under Section 7 of the National Labor Relations Act.
The Elastomers decision over-ruled past precedent and reinstated 3 “setting-specific” tests previously used to determine whether an employee’s offensive conduct and/or profane outbursts had crossed the line from protected activity to abusive conduct and harassment – thereby losing NLRA protection. Under Elastomers, employers must consider the context and various other factors before taking disciplinary action. The tests themselves vary widely based on the setting.
- Outbursts During Management Discussions: If the employee conduct was directed toward management in the workplace, the Board applies a four-factor test to determine if the employee’s outburst is not protected under the NLRA. The four factors considered by the Board are (1) the place of the 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 the employer’s unfair labor practice.
- Inappropriate Social Media Posts and Coworker Conversations: In these circumstances the Board applies a totality of the circumstances test considering such factors as: employer antiunion hostility, provocation, subject matter, nature of the post in question, whether the employer maintained specific rules prohibiting the language at issue or otherwise previously deemed it offensive, and whether the discipline issued was typical as compared to similar offenses.
- Picket Line Misconduct: Under the Board’s review standard, an employee loses the Act’s protection when the misconduct is such that “under the circumstances, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act or whether non-strikers reasonably would have been coerced or intimidated by the picket line conduct.
It is important to remember that the NLRA and the tests described above only come into play if an employee is engaged in protected concerted activity. The NLRA does not protect employee outbursts that clearly constitute unlawful harassment, discrimination, or other non-protected offensive and/or abusive conduct.
The Board majority has stated that the Elastomers case will be applied retroactively to all pending cases. Employers however will probably challenge retroactive application as being inconsistent with due process.
Implications for Employers
The Elastomers decision makes it riskier and more complicated for employers to discipline or fire employees for offensive, racist, sexist, or other profane language or conduct in the workplace when the employee is arguably engaging in protected concerted activity.
Before imposing discipline for offensive conduct, an employer must first consider the context in which the misconduct occurred and whether it occurred during or in connection with protected concerted activity. If not, apply your normal disciplinary process. If yes, go to the next step.
Apply the applicable standard used by the Board based on whether the conduct involves an outburst during management discussions, inappropriate social media posts and coworker conversations, or picket line misconduct.
During this analysis employers also should be aware of their obligations to prevent hostile work environments on the basis of protected traits (e.g., race religion, nationality, gender, etc.) under federal, state and local Equal Employment Opportunity (EEO) laws, as they may conflict with the NLRB’s standards.
The challenge for many employers after this ruling will be how to comply with federal and state antidiscrimination and anti-harassment laws. Employers may find themselves in a no-win situation of either violating the National Labor Relations Act by disciplining an employee for discriminatory, harassing or abusive conduct or violating federal, state and/or local EEO laws by not disciplining an employee for discriminatory or harassing conduct.
Going forward, employers should exercise caution when disciplining or terminating employees for speech or conduct occurring in the course of protected activity and consult with their own legal counsel for company specific legal advice.
The content was provided by SCGMA legal counsel and is for general informational purposes only. Readers should consult with their own legal counsel for company specific legal advice.