Employers and young lawyers alike should be aware of the National Labor Relations Board’s recent decision in Lion Elastomers, LLC II in which the NLRB reverted its rule regarding “abusive conduct” in the workplace back to pre-2020 standards.
On May 1, 2023, the NLRB published its decision in Lion Elastomers LLC II in which it decided to overrule its July 21, 2020 General Motors decision which eliminated (1) the four-factor Atlantic Steel test for employee’s conduct towards management in the workplace; (2) the totality-of-the-circumstances test for social media posts and employee conversations; and (3) the Clear Pine Mouldings standard for picket line conduct. The General Motors decision held that it would no longer apply various setting-specific standards to determine whether employers have unlawfully disciplined or discharged employees who allegedly engaged in “abusive conduct” in connection with activity protected by Section 7 of the National Labor Relations Act. The General Motors standard only looked at the employer’s motivation for the termination.
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