The National Labor Relations Board on Monday issued a ruling that signals a return to the long-established “setting-specific” standards of when an employer may discipline an employee for speech or other activities deemed offensive in a concerted activity, such as striking, picketing or engaging in union activity.
The decision, which came in Lion Elastomers LLC II, overturns a Trump-era ruling that “made it easier for employers to discipline workers who make profane, harassing or discriminatory comments in the course of a workplace dispute,” Reuters reported. Rather, the NLRB now will decide disputes on a case-by-case basis, using the setting specific test for determining whether an employee’s conduct is permitted under the circumstances.
The setting-specific test had been the standard since the 1970s, according to Reuters.
“To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity — not as if it occurred in the ordinary workplace context,” NLRB Chair Lauren McFerran said in a statement.
The decision overrules a 2020 ruling, known as General Motors LLC. In that case, the General Motors board had rejected the traditional standards, which focused on the severity of the employee’s misconduct and the context in which it took place. Traditional standards protected some forms of speech, depending on the severity of the misconduct and the context in which it took place.
The NLRB noted that labor disputes often are heated, and the board reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, to safeguard their statutory rights.
Marvin E. Kaplan was the only dissenting member of the board.
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