A recent decision by the National Labor Relations Board gives employers more flexibility to discipline workers for misconduct even when it’s linked with certain protected activities such as union organizing.
That’s according to an analysis by Milwaukee-based law firm Michael Best, which says employers have regained flexibility for dealing with “employee outbursts,” including “threatening, abusive, discriminatory, or otherwise inappropriate” conduct.
The NLRB last week restored a previously established legal framework, signaling a shift away from the board’s stance under the Biden administration, authors wrote. They noted the change from its previous more “employee-protective” approach to workplace conduct.
This prior approach generally allowed abusive and offensive outbursts to “go unchecked” if they were part of activities protected by Section 7 of the National Labor Relations Act, which includes self-organizing and joining unions, per the law firm’s analysis.
Authors argue the latest decision “sets labor law back on a more reasonable course,” as employers can lawfully discipline their workers for inappropriate conduct if they would have done so regardless of whether the employee was engaged in protected activities.
“This decision represents the first overturn of Biden-Board precedent by the newly constituted Republican majority,” authors wrote. “It signals that more such decisions are likely on the horizon. The decision has important implications for workplace investigations, disciplinary decisions, and the enforcement of workplace conduct rules.”
Under the restored framework, the general counsel involved with a given case must first establish that the employee engaged in Section 7 activity, the employer knew of it, and the protected activity motivated the discipline.
If that’s demonstrated, then the burden shifts to the employer to prove it would have imposed the same discipline, even without the protected activity involved, due to the employee’s misconduct.
“As a practical matter, the inquiry now focuses less on whether the employee’s conduct retained the Act’s protection and more on whether the employer would have disciplined the employee regardless of any protected activity,” authors wrote.
Still, the NLRB decision doesn’t eliminate the risk of unfair labor practice liability, as employers still can’t discipline employees just because they engage in union activity or other protected activity, the analysis notes.
Authors urge businesses to ensure they’re applying workplace conduct rules consistently, while documenting their reasons for disciplinary actions and taking other measures to be sure they’re complying with the restored framework.
Meanwhile, employers should expect further changes in NLRB law now that the board has shown it’s willing to revisit Biden-era precedents, authors say. More reversals may be in store for election procedures, workplace policies, organizing rights and other areas in the coming months.
