Shout, Shout, Let it All Out: NLRB Issues Ruling Expanding Protections for Employee Outbursts


The National Labor Relations Board recently issued an opinion in Lion Elastomers, LLC II,  reinstating prior case law that provides greater protections for employees who engage in disruptive behavior in connection with protected activity under the National Labor Relations Act (“NLRA”)—thereby making it harder for employers to issue discipline for such behavior.

Although not every employer operates under a union contract, the NLRA’s protections extend to all non-supervisory employees in the workplace, whether they belong to a union or not (managers can also be covered by the NLRA in limited circumstances). Critically, Section 7 of the NLRA grants employees the right to engage in concerted protected activity to obtain better terms and conditions of employment, form a union, collectively bargain, or refrain from participating in such activities. Employers are specifically prohibited from taking adverse action (think: discipline, threats, termination) against employees who seek to assert their Section 7 rights. However, some employers have unwittingly found themselves on the receiving end of an unfair labor practices charge simply because they took adverse action against an employee who exhibited abusive, offensive conduct while engaging in Section 7 protected activity.

The Board’s Lion Elastomers, LLC II decision restores precedent that requires a context-specific analysis prior to discipline, which may significantly limit the right of employers to weed out unruly, abusive behavior in the workplace.

These Are the Things I Can Do Without

Like many other employment-related issues, the Board’s recent flip-flop on the permissible bounds of discipline for employee outbursts has been largely administration-specific, changing with the political tide. For nearly forty years, the Board looked to a series of tests to determine whether certain abusive employee conduct fell within the bounds of protected activity under Section 7. However, in 2020, during the Obama administration, the Board issued General Motors and effectively ditched these context-specific tests in favor of a singular test that focused not on the employee’s conduct, but rather the motive of the employer in taking adverse action against the employee. 

The General Motors opinion implemented the Wright Line test, which utilizes a burden-shifting framework of proof—with employees arguing discipline or discharge was motivated by the employer’s animus towards Section 7 rights, and employers arguing discipline or discharge was motivated by a legitimate business reason. With Wright Line’s motivational focus, employers could effectively overcome an allegation of unlawful conduct by demonstrating the action taken against the employee would have been the same even if the employee had not engaged in Section 7 protected activity. 

Now, in one sweeping order, the Board has scrapped General Motors, explaining it is returning to the previous “setting-specific standards aimed at deciding whether an employee has lost the Act’s protections.” According to the Board, the Wright Line test articulated in General Motors gave “too little weight to employees’ statutory rights and too much weight to employers’ interests.”

You Shouldn’t Have to Jump for Joy

With Lion Elastomers, LLC II, the Board has reinstated three different tests, which now require employers to consider the context in which the employee conduct occurred, before taking disciplinary action.

(1)  Conduct Towards Management

The four-factor test, set out in Atlantic Steel, considers: (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

(2)  Social Media Posts and Conversations Among Employees

A totality-of-the-circumstances test is utilized in these situations, which considers all relevant surrounding context.

(3)  Employee Conduct on Picket Lines

The Clear Pine Mouldings standard considers whether, under all the circumstances, non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.

The Board’s majority surmised that a return to these situational-specific tests is needed so employees can exercise their rights “robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.” However, the lone dissenting Board member expressed concern that these tests provide employees significant leeway to engage in  abusive conduct while “eclipsing employers’ rights to maintain order and respect” by “requir[ing] employers to continue to employ individuals who have engaged in such abusive conduct [that] any reasonable employer would have terminated them for [].”

I Hope We Live to Tell the Tale

Given this change in precedent, employers should take practical steps to ensure they are aligned with the NLRB’s new standard. First, remember that not all activity is protected under Section 7 of the NLRA. The tests outlined above only apply in instances where any employee is engaging in abusive conduct while also engaging in concerted protected activity.

Employers should also carefully assess the context and content of any outburst that occurs in the course of protected activity before meting out discipline or terminating employment.

Although the Board is cognizant the NRLA must seek to accommodate other federal statutes, it has asserted that other statues must also work in tandem with the NLRA. However, ignoring the difficult reality employers face to harmonize these requirements, the Board contends there is no  “obvious or inevitable conflict . . . between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law,” because employers have no legal duty to discipline or discharge employees “in every instance involving the sort of offhand comments and isolated incidents” the Board would ordinarily determine constitute protected activity under Section 7. This lack of guidance underscores the most important step employers can take—retention of an experienced attorney to assist with navigation of these complex issues.

Maynard Nexsen’s experienced labor and employment attorneys are ready to assist with these issues, as well as all other needs pertaining to NLRA compliance.

About Maynard Nexsen

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