NLRB Flips (Again), Reinstates Context-Specific Standards For Employee Misconduct

On Monday, the National Labor Relations Board ("Board") issued a decision making it riskier and more complicated for employers to discipline employees for abusive workplace conduct alleged to have arisen within the context of protected activity under Section 7 of the National Labor Relations Act (the "Act"). In Lion Elastomers, 372 NLRB No. 83 (2023), the Board—reasoning that a "fundamental difference" exists between "employee misconduct committed during Section 7 activity and misconduct during ordinary work"—overturned recent Board precedent from the previous administration and reinstated the use of a trio of context-specific standards for determining whether an employer violates the Act by disciplining an employee for abusive conduct occurring in three specific settings: (1) in employee conversations or interactions with management in the workplace; (2) in employee social-media posts (and in most employee workplace discussions among co-workers); and (3) on picket