Last week, the National Labor Relations Board’s (NLRB) game of legal tennis continued when it reversed another Trump-era decision involving when employers can take disciplinary action against employees who lose their cool during otherwise protected labor activities. In 2020, the NLRB decided that employers could take disciplinary action against employees who engage in abusive behavior when participating in protected labor activities. That decision reversed older NLRB precedent that required employers to look at the specific context of the behavior to determine whether the offensive behavior was related to the employee’s attempt to exercise such legal rights.

The NLRB’s new decision reinstates the prior test, giving workers significant room to engage in uncivil behavior at work, on the picket line, or through social media. Employers would need to look at the totality of the circumstances and could not take disciplinary action based on their displeasure with the employee’s attempt to exercise protected legal rights. The reinstatement of this decision applies a higher burden than the same conduct in a non-protected context.

As with other recent NLRB decisions, if a Republican majority assumes control over the Board, employers can expect this decision to be reversed. We appear to have entered an era where the legal standard for protected labor rights depends on the political leanings of the current White House occupant.

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