NLRB Adopts "Motivating Factor" Test For Abusive Workplace Conduct

On July 21, 2020, the National Labor Relation Board (the “NLRB”) issued its decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), adopting a motivating factor test, for cases involving abusive or offensive statements made by employees in the course of “concerted activities” which are otherwise protected under Section 7 of the National Labor Relations Act (the “NLRA”).  The test, also known as the Wright Line standard, focuses on whether the employee’s Section 7 activity was a motivating factor in an employee’s discipline or discharge and shifts the burden to the employer to demonstrate that it would have taken the same action in the absence of Section 7 activity. 

The decision abandons the three setting-specific standards previously utilized by the Board in such cases — one test for analyzing encounters involving managers, another for exchanges between employees on social media, and a third for offensive statements and conduct on the picket line – holding that violations found under the three standards “conflicted alarmingly with employers’ obligations under federal, state, and local antidiscrimination laws.”  The newly adopted singular standard will apply in all cases where the General Counsel alleges that discipline was motivated by Section 7 activity, “regardless of the setting involved, whether it be a workplace, social media, or picket line.” 

While this modified and streamlined framework narrows the scope of NLRA protections as it relates to abusive statements made by employees while engaged in Section 7 activities, the decision does not otherwise expand an employer’s ability to discipline or discharge employees for exercising their Section 7 rights.  For further assistance on employer obligations pursuant to the NLRA, please contact a member of our Labor & Employment Group.

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