The National Labor Relations Board has finally abandoned its problematic standard around the discipline and discharge of employees who engage in abusive conduct in connection with protected concerted activity. On July 21, the Board issued its long-awaited decision in General Motors LLC.
Prior to General Motors, employees were often protected from discipline or discharge—even in circumstances involving racist, profane, and/or vitriol-filled attacks—so long as those attacks occurred simultaneously with conduct otherwise protected by the National Labor Relations Act (NLRA). As outlined in a detailed analysis by the National Labor Relations Board (NLRB or Board), this prior standard led to a flood of cases protecting offensive, abusive conduct. Whether an employer could discharge an employee for using a racist slur or calling a company vice president a “stupid f***ing moron” was questionable and turned on a context-specific multifactor test, which often resulted in the conduct being protected and immune from discipline.
The prior NLRB standards governing offensive workplace conduct and workplace civility requirements were criticized by two former NLRB members, Harry Johnson and Philip Miscimarra, who are both now labor and employment partners at Morgan Lewis. The Board’s recent General Motors decision relied on Harry Johnson’s dissenting opinion in Pier Sixty, LLC, 362 NLRB 505 (2015). The Board also now broadly permits workplace civility requirements (previously deemed unlawful) based on The Boeing Co., 365 NLRB No. 154 (2017), decided in part by former NLRB Chairman Phil Miscimarra.
Morgan Lewis labor and employment partners also include Chai Feldblum, a former commissioner of the Equal Employment Opportunity Commission (EEOC), and Sharon Masling, who served as the EEOC chief of staff to then Commissioner Feldblum. The EEOC filed its own amicus brief in the NLRB General Motors case and first called attention to the tension between the EEOC’s and NLRB’s positions in a report co-authored by Chai Feldblum in 2016.
The Board’s Duty to Protect Employees from Interference in the Exercise of Their Section 7 Rights
The NLRA protects certain employee rights, including the right to work together to raise concerns about terms and conditions of employment. In addition to being concerted activity, the activity must also be for mutual aid or protection in order to be legally protected under the NLRA. The Board has long recognized that disputes regarding wages, hours, and working conditions can “engender ill feelings” and solicit strong responses. The General Motors opinion, however, recognizes that for too long the Board permitted this explanation to overreach and infringe on an employer’s legitimate need to maintain order and a discrimination-free workplace.
The Board Now Recognizes Its Prior Precedent Was Inconsistent with Other Federal Employment Laws
In a welcome return to common sense, the Board has finally recognized that its prior standards failed to properly consider employers’ legal obligations to prevent harassment and a hostile work environment, as well as to maintain order and respect at work.
Employers must meet the NLRA’s protections, the Board held, while also complying with the duty under US antidiscrimination laws that may require investigation, discipline, discharge, or other prompt action against an employee engaged in workplace misconduct.
Following the Board’s September 5, 2019 request for amicus briefing in General Motors, for example, the EEOC filed an amicus brief highlighting the employer’s obligations in this regard:
[W]hen an employee creates a hostile work environment—by engaging in objectively and subjectively severe or pervasive harassment based on a protected characteristic—the employer is liable so long as it knew or should have known about the offending conduct and failed to take prompt and appropriate corrective action.
The Board noted the inherent conflict employers face when deciding whether to discipline an employee who was clearly engaged in protected activity, while also engaging in profane and offensive behavior. The NLRB chastised the prior precedent as “wholly indifferent” to such legal obligations. Quoting former NLRB member (and current Morgan Lewis partner) Harry Johnson, the Board stated:
We live and work in a civilized society, or at least that is our claimed aspiration. The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances. Reflecting this underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free of unlawful harassment. Given all this, employers are entitled to expect that employees will coexist treating each other with some minimum level of common decency.
The Board’s New (and Also Old) Standard
Thus, the NLRB overturned four decades of precedent establishing various multifactor tests and applying it to abusive conduct, including Atlantic Steel, Pier Sixty, LLC (and other cases involving the “totality of the circumstances” test for social media cases), and Clear Pine Mouldings. In determining that a new, clearer standard was needed, the Board explained:
Absent evidence of discrimination against Section 7 activity, we fail to see the merit of finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees. These results simply do not advance the Board’s mission of promoting labor peace or any of the other principles animating the Act.
Instead, the Wright Line framework is the single test that now applies when analyzing whether discipline or discharge based on abusive, profane, and harassing employee actions and statements is lawful. Under Wright Line, the general counsel must prove that (1) the employee engaged in protected concerted activity; (2) the employer had knowledge of that activity; and (3) the employer had animus against the protected activity—in other words, was the activity a motivating factor behind the employer’s discipline?
This final step requires that the general counsel prove, with sufficient evidence, that there was a causal nexus or relationship between the protected activity and the discipline. Once the general counsel makes out his initial case, the burden shifts to the employer to show that it would have taken the same action in the absence of protected activity. Importantly, the Board noted that pretext is still alive and well, and will defeat the employer’s defense here if proven. In doing so, the Board specified that, if the evidence as a whole “establishes that the reasons given for the [employer’s] action are pretextual—that is, either false or not in fact relied upon—the [employer] fails by definition to show that it would have taken the same action for those reasons, absent the protected conduct, and thus there is no need to [evaluate whether the employer would have taken the same action in the absence of protected activity].” Slip op. at 10 (quoting Golden State Foods Corp., 340 NLRB 382, 385 (2003)).
If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Harry I. Johnson, III
 369 NLRB No. 127, slip op. at 1 (July 21, 2020).
 Slip op. at 7.
 Pier Sixty, 362 NLRB at 510.
 245 NLRB 814, 816 (1979).
 362 NLRB 505, 506-508 (2015).
 268 NLRB 1044, 1046 (1984).
 369 NLRB No. 127, slip op. at 8.
 251 NLRB 1083 (1980). The Board’s General Motors decision also was retroactive and applies to any pending cases.
 See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 7-8 (2019).