News & Analysis as of

Disciplinary Proceedings Protected Concerted Activity

Littler

Fifth Circuit Scolds NLRB in Case about Employee Outbursts and Requires Board on Remand to Use Standard it Purported to Overrule

Littler on

On July 9, 2024, the U.S. Court of Appeals for the Fifth Circuit took the latest step in a continuing controversy about when obscenity or other misconduct by a worker, while raising otherwise protected job complaints,...more

Sheppard Mullin Richter & Hampton LLP

The NLRB Must Apply Its Prior Standard for Protected Employee Outbursts and Abusive Speech

On July 9, 2024, the United States Court of Appeals for the Fifth Circuit told the National Labor Relations Board’s to reconsider the standard for whether abusive or inappropriate speech is protected under Section 7 of the...more

Fox Rothschild LLP

NLRB Limits Employers’ Ability to Discipline Employees for Abusive Conduct

Fox Rothschild LLP on

The National Labor Relations Board issued a decision in Lion Elastomers LLC II on May 1, 2023, reversing General Motors LLC, 369 NLRB No. 127 (2020) and changing the standards related to discipline or discharge of workers who...more

Sheppard Mullin Richter & Hampton LLP

…But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech by Employees While They Are Engaged...

In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have...more

McNees Wallace & Nurick LLC

When Assessing the Propriety of Employee Discipline, One Size No Longer Fits All

Now more than ever, it seems that employees are willing to express themselves. While open communication with and among employees is usually a good thing, sometimes an employer’s rules are broken in the process. A worker...more

FordHarrison

Ja Morant’s Suspension: Key Takeaways For Handling An Employee’s Off Duty Misconduct

FordHarrison on

On March 20, 2023, following an eight-game suspension, Memphis Grizzlies’ two-time All-Star point guard, Ja Morant, returned to play in a NBA basketball game against the Houston Rockets. Grizzlies’ fans welcomed back Morant...more

Pullman & Comley - Labor, Employment and...

Disciplining Employees for Offensive Private Speech: Connecticut Employers Must Show Workplace Disruption

Employers in Connecticut need to be aware that Connecticut law makes the free speech provisions of both the First Amendment to the United States Constitution and those of the Connecticut Constitution applicable to...more

Pullman & Comley - Labor, Employment and...

Speak No Evil: The NLRB Drops “Setting-Specific” Standards for Cases Involving Abusive Employee Speech Made in the Course of...

The Trump-era National Labor Relations Board has struck again.  On July 21, 2020 in General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020), the NLRB overruled longstanding precedent and rejected “setting-specific”...more

Morgan Lewis

NLRB Limits Protection Given to Abusive, Profane, or Offensive Workplace Conduct

Morgan Lewis on

The National Labor Relations Board has finally abandoned its problematic standard around the discipline and discharge of employees who engage in abusive conduct in connection with protected concerted activity. On July 21, the...more

Epstein Becker & Green

The Board Brings the NLRA Into the Modern Era of Discipline for Abusive Conduct, and Union Leaders Lament “Guys Like Us, We Had It...

Epstein Becker & Green on

On Tuesday, the three-member, all Republican, National Labor Relations Board (the “Board”) issued a 3-0 decision in General Motors LLC and Charles Robinson, 369 NLRB No. 127 (July 21, 2020)...more

Seyfarth Shaw LLP

Seyfarth Policy Matters Newsletter - July 2020 #4

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NLRB Decision Gives Employers More Leeway to Discipline Employees for Offensive Speech.  Traditionally, the National Labor Relations Act protected offensive or even abusive speech by employees when the worker is involved in...more

McNees Wallace & Nurick LLC

NLRB Adopts Single Rule to Evaluate Employee Misconduct

The National Labor Relations Board has traditionally applied separate tests to evaluate whether employee discipline violated the National Labor Relations Act, depending on the context of the underlying misconduct. This has...more

Snell & Wilmer

Employers May Require Confidentiality During Ongoing Disciplinary Investigations and Prohibit Use of Company Equipment for...

Snell & Wilmer on

Overruling Obama-era precedent, on December 17 the National Labor Relations Board (Board) published two decisions that will significantly affect all employers. In a decision involving a Las Vegas employer, the Board held...more

Cohen & Gresser LLP

Can Employers get a Grip on Griping? Not all Gripes are Created Equal…

Cohen & Gresser LLP on

Negative employee attitudes, chronic complaining, insubordination and gossiping are bad for the workplace.  They can impact employee morale and productivity, and if spread outside of the organization, reflect very poorly on...more

Hinshaw & Culbertson LLP

NLRB to Revisit Issue of When Employees Lose NLRA Section 7 Protection When Using Threatening and Demeaning Language

While discussing work assignments with his supervisor, an employee uses abusive and profane language. In another incident, the employee disrupts a workplace meeting by playing loud music with racial and political overtones....more

Seyfarth Shaw LLP

Restoring “Balance” To The (Work)Force: The Board Clarifies Its Tests To Determine When “Protected Activity” Becomes Unprotected

Seyfarth Shaw LLP on

Seyfarth Synopsis: The Board affirms an employer’s decision to discharge an employee for engaging in dishonesty and a security breach. In the process, it clarifies the legal standards to be used when assessing whether...more

Littler

These Foolish Things – The Oddest Employment Issues of the Past Year

Littler on

Even outside the Capital Beltway, this has been a strange year. Those of us who handle labor and employment issues everyday often think we’ve seen it all—only to be proven wrong time and again. As April Fools’ Day approaches,...more

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