Employers are often surprised to learn about the scope of the National Labor Relations Act (“NLRA”), because much of the NLRA applies to union organization and collective bargaining. Section 7 of the NLRA applies to nearly every non-supervisory employee in the U.S., both union and non-union, however, and it protects such employees’ rights to engage in concerted activity for their mutual aid and protection. The National Labor Relations Board (“NLRB” or the “Board”), the federal agency charged with administering the NLRA, considers a wide swath of employee conduct to fall within the protection of Section 7. Protected conduct can include both in-person and online conversations among employees and between employees and management regarding wages, hours, work environment, and other terms and conditions of employment—even, to some extent, when these conversations become heated and non-supervisory employees have outbursts or lapses in workplace professionalism or courtesy.
The composition of the Board changes with each presidential administration, and these changes in composition can result in major changes in the positions taken by the Board. Recently, one such major change occurred regarding the protection afforded to employees who have outbursts or lapses in civility in the course of engaging in Section 7 protected activity.
Until 2020, the Board had long held that employee outbursts in the context of protected Section 7 activity were different than outbursts in an ordinary, non-Section 7 context. Employee outbursts occurring in the course of Section 7 activity were considered to be part of the protected activity. Accordingly, such outbursts enjoyed some protection from disciplinary action, because an employer’s discipline against an employee for such an outburst was assumed to have been issued because of the Section 7 activity. Such discipline would have been considered an NLRA violation, unless the employer could show that the employee’s outburst was egregious or abusive enough to lose the NLRA’s protection. Whether an employee’s misconduct was sufficiently egregious to lose that protection depended on a number of context-specific factors, including to whom the employee’s misconduct was directed; the subject matter of the misconduct; the nature, place, and time of the misconduct; the extent to which the misconduct involved threats or physical conduct; the extent to which the misconduct was provoked by an employer’s unfair labor practice, and more. In this legal environment, blanket workplace civility policies that prohibited offensive, discourteous, unprofessional, or disrespectful conduct ran a high risk of running afoul of the NLRA.
In 2020, the Trump Administration’s Board issued a decision, General Motors LLC, 369 NLRB No. 127 (July 21, 2020), that did away with these context-specific tests and significantly increased employers’ leeway to take adverse action against employees for outbursts and other misconduct occurring in the course of Section 7 activity. Among other things, this decision provided that evidence of a causal connection between an employer’s adverse action for an employee’s outburst and an employee’s Section 7 activity would be required to show the employer violated the NLRA. In other words, the causal connection between the adverse action and the protected activity would no longer be assumed. The practical effect of the General Motors ruling was that many employers revised their personnel policies to include more stringent workplace civility rules and more freely disciplined employees for violations of such policies.
In May 2023, the Biden Administration’s Board changed course in this regard, however. In Lion Elastomers LLC, et al., 372 NLRB No. 83 (May 1, 2023), the Board overruled General Motors, declared that conduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context—and restored the previous context-specific tests, noting that “the proper focus in these cases is on the extent of alleged misconduct occurring in the course of the exercise of Section 7 activity.” The Board went on to criticize the General Motors decision for rejecting what had been established Board precedent and for “elevat[ing] ‘civility’ as a supposed statutory goal,” which this Board reasoned “[gave] employers dangerous discretionary power over employees whenever they exercise their statutory rights in opposition to the employer’s interests.” In short, the legal environment that permitted employers some leeway regarding workplace civility policies has changed significantly with the Board’s Lion Elastomers holding, and blanket workplace civility policies may again risk running afoul of the NLRA, particularly when such policies are applied to discipline employees for outbursts or other misconduct made in the course of Section 7 protected activity. Employers who revised their personnel policies or disciplinary practices following the General Motors decision in 2020 should consult with employment counsel to revisit their policies and disciplinary practices in light of Lion Elastomers.