New misconduct standard set by NLRB gives employees significant leeway in tone of communications with management

By Kristofor L. Hanson

On May 1, 2023, the National Labor Relations Board returned to its prior standard for analyzing the legality of disciplining employee misconduct related to protected concerted activity. In Lion Elastomers LLC II, 372 NLRB No. 83, the Board overruled its decision in General Motors, 369 NLRB No. 127 (2020) and reverted to its pre-2020 standard for determining whether an employer may lawfully discipline employees whose actions and/or words cross the line into abusive conduct. General Motors applied the three-part Wright Line standard — under which the employer can lawfully discipline an employee if it can show it would have taken the same action absent the employee’s protected activity — in all abusive conduct circumstances. For employers, that standard lasted just three years and with its decision in Lion Elastomers LLC II, the Board will once again apply one of three different standards, depending on whether the conduct involves: 1) communication to management; 2) communication in social media posts or in conversations among employees; or, 3) picket-line conduct. As a result, employers must evaluate different standards in determining whether it can lawfully impose discipline based on the context in which the misconduct occurred.

This decision returns employers to an environment where offensive or abusive actions that go beyond the bounds of proper workplace conduct will be considered lawful in most instances if the conduct arguably occurs in the context of exercising protected activity (grievance meetings, collective bargaining, intra-employee communications, social media discussions about the employer, etc.). The decision also engenders workplace environments that lack professionalism among workers and places employers in the difficult position of risking unfair labor practice charges for disciplining unruly behavior or allowing such behavior and creating an atmosphere where such behavior is condoned.

As a result, employers must be cautious when disciplining employees who engage in behavior that they deem unprofessional or disrespectful. Therefore, employers would be wise to consult with labor counsel before taking any disciplinary action under such circumstances.