Monday, August 10, 2020: NLRB Publishes New Across-the-Board Legal Standard to Deal With Abusive Employees
The case is General Motors LLC, Case Nos. 14-CA-197985 and 14-CA-208242, decided July 21, 2020, but Order published August 10, 2020.
In this case decision, the National Labor Relations Board (NLRB) has now consolidated into a single legal standard the circumstances under which an employer subject to the National Labor Relations Act (NLRA) may impose discipline on abusive employees without violating the employee’s Section 7 NLRA rights to engage in “protected concerted activity.” Until last Monday, several different NLRB legal standards had applied depending on the context in which the alleged protected concerted activity occurred.
The new homogenous NLRA legal standard for employees asserting their Section 7 rights follows the Board’s Wright Line, 251 NLRB 1083 (1980) case decision. Wright Line has required for the last forty years that an employee engaging in “concerted protected activity (or activities),” will not be subject to discipline for abusive conduct, if the employee is able to show three elements of proof:
- the employee engaged in Section 7 concerted activities;
- the employer knew of such activity; and
- the employer had animus against the Section 7 activity (which the employee must prove with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity).
If the employee is able to prove these three elements, an employer may rebut the evidence by proving it would have taken the same adverse employment action even in the absence of the Section 7 activity.
Background
The Board’s General Motors case decision last week arose against the background of rising interest in the issue of how far an employee may lawfully go when criticizing working conditions, managers or an employer. Employee concerns have been steadily rising about “work” culture and the terms and conditions of work an employer may impose upon employees. Moreover, with the advent of social media streams such as Twitter, Facebook, and Instagram, there are more “soapboxes” available to employees to publicly “shame” managers and their employer. This increased access to public forums, as well as the increased partisan nature of social discourse in recent years, worried the Board that the recent increased vitriol could undermine an employer’s right “to maintain order, respect, and a workplace free from invidious discrimination.”
Until recently, the precise legal test the NLRB used to determine whether such abusive conduct or behavior was protected from disciplinary action under Section 7 of the NLRA, no matter how vile, varied depending upon the context and location of the criticism. The NLRB has now homogenized its analysis into a single test to clear some of the “legal clutter” that could otherwise confuse parties litigating the issue of when an adverse employment action is appropriate for abusive conduct or statements made during the course of an employee’s Section 7 activities.
By homogenizing the standard of review into one test, rather than maintaining different tests based on the different circumstances when the alleged abusive conduct occurred, the NLRB focused on the causation of the discipline that would occur in response to the employee’s abusive conduct. Specifically, if the employer’s adverse employment action occurred because of the abusive conduct or derogatory language, without consideration of the Section 7 activities which had given rise to the at-issue conduct or language, then that conduct or language does not enjoy the protections Section 7 of the NLRA provides to employees. This is because the NLRB found that abusive conduct that occurs in the context of Section 7 activity is analytically separable from the Section 7 activity itself, which is properly protected under the NLRA.
What is Different After the GM Case Descision?
Before last week’s General Motors’ decision, the NLRB had given employees in some contexts leeway for impulsive behavior when engaged in concerted activity Section 7 protects based on the rationale that “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.” The current NLRB, however, found this historical rationale overstated, and that employers should be empowered to prevent abusive conduct in the work environment to protect against ad hominem attacks against other employees and racial slurs, to use but two examples of employee misconduct in which the NLRB voiced concern in the GM case.
Going forward, the General Motors ruling provides employers the means to determine whether discipline is appropriate for disparaging or abusive remarks criticizing the employer’s work conditions. If an employer would not have permitted those disparaging or abusive remarks in any other context, then an employer can show that the discipline is due to the conduct itself, regardless of the concerted activities associated with the conduct. This analysis provides employers more authority to enforce appropriate decorum necessary in the work environment to ensure stable working relationships and stamp out potential discriminatory employee conduct.
