News & Analysis as of

Employee Misconduct The National Labor Relations Act

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

Ogletree, Deakins, Nash, Smoak & Stewart,...

The Practical NLRB Advisor: Fall 2023

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Fall 2023 issue of the Practical NLRB Advisor. In this issue of the Advisor, we cover three of those sharply divided...more

Patterson Belknap Webb & Tyler LLP

The National Labor Relations Board Tightens Restrictions on Workplace Conduct Policies

On August 2, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in Stericycle, Inc. and Teamsters Local 628 tightening the reins on employer workplace conduct policies. The decision rejects a...more

Jackson Lewis P.C.

Manufacturers and Labor Board’s Decision Limiting Employers’ Response to Abusive Workplace Conduct

Jackson Lewis P.C. on

The National Labor Relations Board has narrowed the rights of employers to discipline employees who, while engaged in protected concerted activity under the National Labor Relations Act, engaged in abusive conduct. Lion...more

Jackson Lewis P.C.

Labor Judge Decision Explains Employer Discipline of Employee for Serious Performance Issues

Jackson Lewis P.C. on

Two important principles under the National Labor Relations Act are worth reiterating to construction employers: first, employees cannot be disciplined for engaging in activity protected by that Act; and, second, employers...more

Skadden, Arps, Slate, Meagher & Flom LLP

Employment Flash - June 2023

New York, Minnesota and NLRB Act To Limit Noncompetes - New York Legislature Passes Bill To Ban Post-Employment Noncompetes - On June 20, 2023, the New York state Legislature passed a bill that bans post-employment...more

McAfee & Taft

Disciplining employee misconduct: A return to (relative) complexity

McAfee & Taft on

The decisions of the National Labor Relations Board have always been subject to the change — sometimes shifting pro-employer, sometimes pro-labor — depending on the political composition of its members. Once again, the Board...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Can You Discipline Employees for Workplace Outbursts? NLRB Says It Depends on the Setting

Imagine that an employee in a workplace meeting stands up, and in a profanity-laced tirade, calls the manager in the meeting several names not fit for print. Most employers would immediately discipline, if not fire, that...more

Fox Rothschild LLP

U.S. Supreme Court Makes It Easier to Sue Unions for Property Destruction

Fox Rothschild LLP on

The U.S. Supreme Court recently decided in Glacier Northwest, Inc. v. Int’l Bhd. of Teamsters Local Union No. 174, No. 21-1449 (June 1, 2023), that the National Labor Relations Act (NLRA) does not prohibit certain claims...more

Sherman & Howard L.L.C.

Supreme Court Paves a Way for Union Strike Damage Claims

In an almost unanimous decision, the Supreme Court held that an employer could pursue tort claims against a union for destruction of property during a strike notwithstanding the broad doctrine of preemption under the National...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

Payne & Fears

Agency Updates Employers Need to Know

Payne & Fears on

Federal agencies have kept busy over the past month, with several releasing decisions or guidance directly related to the workplace. Employers should be aware of what these actions mean for the way they conduct their...more

Dorsey & Whitney LLP

The NLRB Reverses Course (again) on Employee Outbursts and Protected Concerted Activity

Dorsey & Whitney LLP on

What happens when an employee starts yelling at the boss, makes profane social media posts about work, or engages in other “abusive conduct?” In many cases, employers can follow their own policy and impose discipline if...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

Jackson Lewis P.C.

Top Five Labor Law Developments for April 2023

Jackson Lewis P.C. on

The National Labor Relations Board returned to its prior standard for analyzing the legality of disciplining employee misconduct related to protected concerted activity. Lion Elastomers LLC II, 372 NLRB No. 83 (May 1, 2023)....more

Proskauer - Labor Relations Update

NLRB Flips (Again), Reinstates Context-Specific Standards For Employee Misconduct

On Monday, the National Labor Relations Board (“Board”) issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of...more

Davis Wright Tremaine LLP

NLRB Makes It Significantly Harder for Employers to Issue Discipline for Workplace Outbursts

Lion Elastomers Revives a "Setting-Specific" Standard That Is Again Likely to Lead to Arbitrary Results and Conflicting Obligations Under Various Statutes - After the National Labor Relations Board's recent decision in...more

Cozen O'Connor

NLRB Makes it Harder to Discipline Employees who Engage in Abusive Behavior

Cozen O'Connor on

In Lion Elastomers LLC, 372 NLRB No. 83 (5/1/2023)(Lion Elastomers), the National Labor Relations Board (NLRB or Board) revisited the issue of what happens when an employee engages in abusive or inappropriate conduct while...more

Harris Beach PLLC

NLRB Ruling Makes it More Difficult for Employers to Take Action Against Employees for Abusive Conduct

Harris Beach PLLC on

On May 1, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision that makes it more difficult for employers to discipline or discharge employees for their offensive or abusive conduct while engaged...more

Morgan Lewis

NLRB Returns to Liberalized Section 7 Protection for Workplace Misconduct Incidents

Morgan Lewis on

The National Labor Relations Board’s recent decision in Lion Elastomers reinstated setting-specific standards to assess how employers respond to employee misconduct, including potentially profane, discriminatory, and...more

Husch Blackwell LLP

NLRB Provides Employees Extra Leeway to Use Offensive Language

Husch Blackwell LLP on

On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct...more

Constangy, Brooks, Smith & Prophete, LLP

NLRB restores labor law protection for employee misconduct that accompanies Section 7 activity

On May 1, the National Labor Relations Board issued a decision that will restore protection for employee misconduct when it occurs during protected concerted activity. In Lion Elastomers LLC II, the Board overruled 3-1 a...more

Steptoe & Johnson PLLC

NLRB Gives Workers Greater Leeway to Engage in Abusive Conduct

On May 1, 2023, the National Labor Relations Board (the Board) issued its decision in Lion Elastomers LLC II and made it more difficult for employers to discipline employees for misconduct and outbursts. Now employers must...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

NLRB Ruling Makes it More Difficult for Employers to Discipline Employees Over Outbursts

On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision that changes the standards relating to discipline or discharge of workers who cross the line with offensive or abusive conduct while engaging in...more

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