NLRB Affords Employers Greater Leeway in Addressing Abusive Conduct By Employees

NLRB Affords Employers Greater Leeway in Addressing Abusive Conduct By Employees

On July 21, 2020, the National Labor Relations Board (NLRB) in General Motors LLC, established a new standard for determining whether employees have been lawfully disciplined or discharged when making abusive or offensive statements, including profane, racist, and sexually unacceptable remarks, while also engaged in protected activity. The National Labor Relations Act (NLRA) protects union and non-union employees who engage in protected, concerted activities, such as talking with co-workers about wages, hours and other working conditions, refusing to work in unsafe conditions, talking to the media about workplace problems, etc.

In General Motors LLC, the Board rejected the “setting-specific” standards that had been applied when an employee engaged in offensive or abusive conduct in the course of otherwise-protected activity. The Board will now apply the well-established Wright Line standard that requires an employer to prove it would have taken the same action even in the absence of the employee’s protected activity. The Board noted that its new standard will eliminate the conflict between the NLRA and antidiscrimination laws and reduce the likelihood that employees who had been discharged for engaging in deeply offensive conduct will be reinstated.