Employee Misconduct: Burden-Shifting Returns With NLRB’s Latest Lion Elastomers

Takeaways

• The National Labor Relations Board has returned to the burden-shifting standard for determining whether employees lose National Labor Relations Act protection for misconduct during Section 7 protected activity.
• Under the restored test, the Board general counsel must prove, by a preponderance of evidence, that employees engaged in union or protected concerted activity, the employer knew of that activity, and antiunion animus was a motivating factor in the adverse action. 
• If the general counsel satisfies the initial burden, the employer must prove that it would have taken the same disciplinary action absent the employee’s protect activity.
• Employers’ consistent policy enforcement and thorough documentation continue to be important in defending employee disciplinary decisions.