On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision (Lion Elastomers II, 16-CA-190681) reverting to the standard regarding discipline for racist, sexist, and other profane speech in the context of workplace activism and union activity to that of the pre-Trump era. Specifically, the NLRB reinstated three previously used, context-specific tests for determining whether an employee’s offensive outbursts are protected under the National Labor Relations Act.
Under the current Democrat-controlled Board, Chair McFerran stated, “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.” The decision creates a different environment where employers have less control over conduct, including on social media and workplace discussions.
The decision is a setback for employers, who will now have to be more careful about how they discipline employees for misconduct that occurs during protected concerted activity. Employers Council will discuss the Lion Elastomers II decision in the upcoming edition of its labor-focused newsletter, The LR Advisor. If you want to learn more about labor relations matters or receiving The LR Advisor, please contact LR@employerscouncil.org.