News & Analysis as of September 18, 2024

Employee Misconduct

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The phrase "Protected Concerted Activity" refers to certain protected activities specified in the National Labor Relations Act of 1935. Under the NLRA, covered employees may join together to improve their wages and working conditions. If employees are engaged in "protected concerted activity" and suffer adverse employment consequences, such employees may seek redress under the NLRA, whether or not they are members of a union. 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

The Practical NLRB Advisor: Fall 2023

Ogletree, Deakins, Nash, Smoak & Stewart,... on 10/10/2023

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

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

NLRB Limits Employers’ Ability to Discipline Employees for Abusive Conduct

Fox Rothschild LLP on 6/1/2023

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

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

Top Five Labor Law Developments for April 2023

Jackson Lewis P.C. on 5/11/2023

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

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

Constangy, Brooks, Smith & Prophete, LLP on 5/5/2023

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

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

Ogletree, Deakins, Nash, Smoak & Stewart,... on 5/3/2023

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

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 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

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

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

Seyfarth Shaw LLP on 3/13/2018

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

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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