NLRB Reinstates "Setting Specific" Test for Abusive Employee Conduct

National Labor Relations Board Restores "Setting Specific" Test for Employee Conduct
 

On Monday, the National Labor Relations Board overturned a decision made during the Trump administration that made it simpler for employers to punish employees who made discriminatory, harassing, or vulgar remarks during a workplace dispute. The Democrat-controlled board voted 3-1 to revert to a "setting specific" criterion that had been in place for decades to determine if abusive conduct by employees was still safeguarded by federal labor law. The decision was made in a case involving Lion Elastomers LLC. This Texas-based synthetic rubber manufacturer reprimanded and dismissed an employee in 2017 after a heated argument about working conditions with managers.
 
Lion Elastomers LLC Case Prompts NLRB to Revert to Decades-Old Criterion
 
Lion Elastomers LLC claimed that the worker's conduct was so egregious that firing was warranted, but the board disagreed and ordered the company to rehire him. On Monday, the NLRB stated that a 2020 ruling involving General Motors had given companies too much latitude to discipline employees for misconduct without considering the circumstances and whether such actions would discourage other employees from advocating for better working conditions. The agency said the General Motors decision broke with decades of court precedent and failed to consider employee rights properly. The board had been evaluating whether offensive conduct made during a workplace dispute is protected on a case-by-case basis since at least the 1970s. However, the agency had previously decided in the General Motors case that it would instead evaluate whether employers would have taken the same action against an employee who made vulgar comments unrelated to a work-related dispute. Lawyers for Lion Elastomers and the United Steel Workers union, representing the company's employees, did not immediately respond to requests for comment.
 
NLRB Finds General Motors Ruling Gave Employers Too Much Latitude to Discipline Workers
 
The National Labor Relations Board (NLRB) has reversed a Trump-era ruling that made it easier for employers to discipline workers who use profane, harassing, or discriminatory language during a workplace dispute. In a 3-1 decision, the Democrat-led board restored a decades-old “setting specific” test for determining when abusive conduct by employees is protected by federal labor law. The panel found that a 2020 decision regarding General Motors had given employers too much room to sanction worker misconduct without considering the context and whether it would discourage other workers from advocating for better working conditions. The case involved Lion Elastomers, a Texas-based synthetic rubber manufacturer that fired a worker after he had a heated exchange with managers over working conditions. The NLRB ordered the company to reinstate the worker.