NLRB ruling will make it tougher to discipline workers for outbursts

On May 1, 2023, the National Labor Relations Board (NLRB) reversed a 2020 decision that made it easier to discipline workers for inappropriate or offensive outbursts while engaging in activities protected by the National Labor Relations Act (NLRA).

The new standard—which resurrects three setting-specific tests previously used to determine whether a workers’ outbursts fall outside of labor law’s protections—will make it more difficult for employers to determine whether they can safely discipline an employee for outbursts without legal risk under the NLRA. Read on to learn what you should know about the decision and the three tests you should keep in mind before disciplining an employee for conduct arising with protected activity.

How did we get here?

For decades, the NLRB and courts applied three different tests, depending on the context of the protected activity, to determine whether a worker’s inappropriate or offensive outburst propelled them outside of the NLRA’s protections and opened them up to discipline.

Over the years, this patchwork of tests had been criticized as difficult to navigate and as undermining employers’ ability to maintain order and respect in the workplace by restricting their ability to discipline employees for disrespectful, offensive, and derogatory comments or conduct that otherwise wouldn’t be tolerated. Critics also claimed the tests could place employers in conflict with antidiscrimination laws by requiring them to allow racist and sexist conduct to go unpunished.