Back To Wright Line: NLRB Resets Standards For Workplace Misconduct

Key Takeaways

• The NLRB confirmed the validity of the employer friendly standard from General Motors regarding when an employee’s abusive or offensive conduct does not qualify as protected under the NLRA, replacing the long-standing Atlantic Steel precedent.
• Under the implemented General Motors standard, the employee must show that the employer’s adverse action against the employee was motivated by the employee’s protected activity. At that point, the employer can show that it would have taken the action against the employee regardless of any protected Section 7 activity.
• Employers should ensure they consistently apply discipline and procedures, regardless of the context under which inappropriate, abusive, or offensive behavior arises.