Today, the National Labor Relations Board overturned precedent set in the 2020 which had expanded the Board’s framework for determining whether abusive employee conduct could cause an employee to lose the protection of the National Labor Relations Act.
The Board noted that there is a fundamental difference between employee misconduct committed during protected Section 7 activity, and misconduct during ordinary work, and that employees must be given some leeway for their behavior while engaging in protected concerted activity, because labor disputes can often be heated.
An employer should be careful to evaluate a response to any employee misconduct that occurs in the context of the employee’s protected activity to ensure that the employer does not run afoul of the National Labor Relations Act under the reverted standards.
Check out the Board’s press release here: Board Returns to Traditional Standards for Evaluating Employee Misconduct During Protected Concerted Activity | National Labor Relations Board