Yesterday, in a long-awaited decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the National Labor Relations Board (“Board” or NLRB”) gave employers a clearer pathway to disciplining employees who engage in abusive workplace conduct — including profane, racist, and sexually harassing remarks — even when the conduct coincides with concerted activities otherwise protected by the National Labor Relations Act (“NLRA” or the “Act”).
The General Motors decision reinstates a 40-year old previous test known as Wright-Line. Under this test, an employer’s disciplinary decision generally will be deemed lawful unless (a) there is sufficient evidence that the decision was motivated by the employer’s animus toward the employee’s protected concerted activity and (b) the employer fails to show that it would have made the same disciplinary decision even absent that activity.
In reinstating Wright-Line, the Board overturned tests from prior rulings, including several Obama-era decisions, that focused on the setting in which the protected activity took place and, as a result, shielded employees’ obscene, racist, and sexually harassing workplace speech from appropriate disciplinary consequences. General Motors ends this unwarranted protection. The decision also provides much-needed clarity for avoiding conflicts between the NLRA and various state and federal anti-discrimination laws.
For employers, the case provides the basis for modifying workplace civility rules and permits a return to standards of conduct as specified in employer workplace policies and work rules. Despite the change established in General Motors, employers nonetheless must continue to be mindful of the obligation to avoid in engaging in retaliatory action for employees’ concerted activity that is protected under Section 7 of the Act. However, the Board’s expanded utilization of the Wright-Line standard should make that avoidance much easier on a going-forward basis.