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.

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Photo of Michael J. Frantz Michael J. Frantz

For over forty years, Mike’s practice has been devoted to the exclusive representation of employers and their management teams in dealing with the full range of labor and employment issues. He has represented employers in contract negotiations with virtually every major union in…

For over forty years, Mike’s practice has been devoted to the exclusive representation of employers and their management teams in dealing with the full range of labor and employment issues. He has represented employers in contract negotiations with virtually every major union in the U.S. and Canada. Throughout his career he has focused on representing health care and higher education institutions, as well as manufacturing companies and service organizations.

Mike’s practice also includes serving as outside general counsel for a number of his clients. He also serves as a member of the Board of Directors or in other corporate positions for many clients. Nothing gives Mike greater satisfaction as a lawyer than to become known as a trusted advisor to those clients.

Mike currently serves as a member of the firm’s Management Committee that is charged with the responsibility of focusing on the strategic planning and overseeing the day-to-day administration of the firm. He has been recognized at the highest ranking, Band 1, in the area of Labor and Employment by Chambers USA: America’s Guide to Leading Lawyers in Business and designated Best Lawyers’ “2018 Lawyer of the Year” in Labor Law—Management in Cleveland. Mike is continuously named to The Best Lawyers in America and the Ohio Super Lawyers lists.

Photo of Ryan T. Smith Ryan T. Smith

Ryan focuses his practice on employment litigation and labor relations. He represents management in state and federal courts and before administrative agencies in a wide range of matters, including employment discrimination, retaliation, and harassment, wage and hour disputes, including class and collective actions…

Ryan focuses his practice on employment litigation and labor relations. He represents management in state and federal courts and before administrative agencies in a wide range of matters, including employment discrimination, retaliation, and harassment, wage and hour disputes, including class and collective actions, and breaches of non-competition and other types of employment agreements. Ryan also represents employers in traditional labor matters, at arbitrations and before the National Labor Relations Board.

When not representing employers in active disputes, Ryan counsels them on key employment decisions such as wage and hour compliance, leave administration, and terminations, and on various aspects of the collective bargaining relationship. He also drafts employment agreements and policy manuals.