The National Labor Relations Board has ruled that its 2020 General Motors standard governs cases involving discipline for abusive conduct during protected activity, such as yelling offensive epithets at a supervisor while protesting working conditions. The Board also indicated that it could reconsider General Motors in a future case.
Under General Motors, the NLRB General Counsel first must show that protected activity contributed to the employer’s disciplinary decision. The employer can then avoid liability by proving that it would have imposed the same discipline even without the protected activity. The new ruling restores a uniform, causation-based framework, replacing standards that varied depending on whether misconduct occurred in the workplace, on social media, or on a picket line.
For employers, the decision provides a stronger basis for enforcing consistently applied conduct rules during protected activity, including rules addressing profane, threatening, discriminatory, or other abusive conduct. Before imposing discipline, an employer should separate the protected activity from the accompanying conduct and confirm that it has imposed the same consequences for equivalent misconduct unrelated to protected activity.
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