News & Analysis as of September 24, 2024

Employee Misconduct

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The National Labor Relations Board is an independent agency of the United States federal government created in 1935 as part of the National Labor Relations Act. The Board consists of five presidentially-appointed members, who are charged with overseeing union elections and hearing complaints of unfair labor practices under the NLRA. less -

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

Littler on 7/25/2024

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

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

Sheppard Mullin Richter & Hampton LLP on 7/22/2024

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

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

Jackson Lewis P.C. on 8/7/2023

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

Employment Flash - June 2023

Skadden, Arps, Slate, Meagher & Flom LLP on 6/23/2023

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

Discipline for Offensive or Abusive Conduct Towards Management - What is “Opprobrious” Enough for the NLRB?

Spilman Thomas & Battle, PLLC on 6/22/2023

Employers must be cautious in disciplining employees for offensive or abusive conduct directed at management in the workplace in light of standards recently reestablished by the National Labor Relations Board (“NLRB”)....more

Disciplining employee misconduct: A return to (relative) complexity

McAfee & Taft on 6/22/2023

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

Agency Updates Employers Need to Know

Payne & Fears on 5/19/2023

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

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

Dorsey & Whitney LLP on 5/18/2023

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

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

Sheppard Mullin Richter & Hampton LLP on 5/15/2023

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

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

Davis Wright Tremaine LLP on 5/9/2023

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

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

Cozen O'Connor on 5/9/2023

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

NLRB Returns to Liberalized Section 7 Protection for Workplace Misconduct Incidents

Morgan Lewis on 5/5/2023

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

NLRB Provides Employees Extra Leeway to Use Offensive Language

Husch Blackwell LLP on 5/5/2023

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

NLRB Gives Workers Greater Leeway to Engage in Abusive Conduct

Steptoe & Johnson PLLC on 5/5/2023

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

NLRB Returns to Decades-Old Standards for Assessing Employee Misconduct at Work

Miles & Stockbridge P.C. on 5/3/2023

The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will...more

NLRB Makes It Easier to Discipline Employees for Abusive Conduct

Foley Hoag LLP on 7/28/2020

On July 21, 2020, the National Labor Relations Board simplified its legal standard for determining whether an employer violates the National Labor Relations Act when it disciplines employees for engaging in abusive conduct...more

NLRB Adopts Single Rule to Evaluate Employee Misconduct

McNees Wallace & Nurick LLC on 7/23/2020

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

Silence is Golden in Apogee Retail: The NLRB Affirms Employers’ Right to Require Confidentiality in Workplace Investigations

Pullman & Comley - Labor, Employment and... on 1/15/2020

In what can be considered a triumph for common sense, the National Labor Relations Board [“NLRB” or “Board”] recently issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), upholding an...more

Busy Board Returns to Rule Permitting Workplace Confidentiality Restrictions during an Employer’s Investigation

Proskauer - Labor Relations Update on 12/19/2019

As anticipated, in one of the last decisions before the end of Member McFerran’s term, the NLRB issued another important opinion. Reverting back to precedent that preceded a 2015 decision, the Board, in Apogee Retail LLC...more

Seventh Circuit Affirms NLRB in Upholding Discharge of Fast and Furious Employee for Highway Misconduct

Littler on 9/16/2019

In Local 702, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board and Consolidated Communications, the U.S. Court of Appeals for the Seventh Circuit recently upheld the termination of a...more

Top Tips for Concluding Workplace Investigatory Interviews

Ogletree, Deakins, Nash, Smoak & Stewart,... on 11/1/2018

A truly effective workplace investigator knows how to best wrap-up an employee interview. Don’t leave loose ends or wiggle room that can later undermine the effectiveness of the overall investigation and the employer’s...more

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

Proskauer - Labor Relations Update on 5/10/2018

The Board is now operating at a full complement and is issuing decisions on a fairly regular basis. Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing....more

Impulse Control? NLRB Finds Employee’s Misconduct To Be Deliberate and “Predetermined” and Not Protected

Proskauer - Labor Relations Update on 3/5/2018

The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development,...more

Athletes and Employees Speak Out: Do Your Employment Practices Drop the Ball in Addressing Diversity, Controversial Speech, or...

Ogletree, Deakins, Nash, Smoak & Stewart,... on 9/19/2017

With the 2017-18 National Football League (NFL) regular season and National Basketball Association (NBA) pre-season underway, many spectators are excited to don their favorite players’ jerseys and cheer on their teams. Yet in...more

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National Labor Relations Board › Employer Liability Issues › Employee Misconduct

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