A national labor market board that states that abuse or inappropriate speech in the workplace by employees engaged in "protected coordinated" or union activities is not protected under the National Labor Relations Act eliminates confusion and harmonizes federal anti-discrimination laws, say employer attorneys. The long-awaited judgment in General Motors LLC and Charles Robinson – issued July 21 – concerns Mr. Robinson's suspension after he led a blatant outburst against a supervisor during a 2017 meeting where Robinson was involved in union activity.
Mr. Robinson has represented members of bargaining units as his full-time job at GM's automobile facility in Kansas City, Kansas, since 201
In one incident, for example, he told a boss that he did not "give one (expletive) about your crucifixion", and in another "acted spittingly a caricature of a slave."
Experts say the decision clarifies the standard by which employers should work to deal with comparable situations and combines the NLRB's position with Title VII of the Civil Rights Act of 1964, enforced by the US Equal Employment Opportunity Commission, among other federal discrimination laws.
The NLRB's decision stated that the Board has used three different standards, named after previous decisions: the Wright Line standard, commonly used to determine whether discipline was an illegal response to protected behavior; the test Atlantic Steel which means whether an outburst of management in the workplace was provoked by an employer's unfair work practices; and the Clear Pine Moldings standard, which pertains to control lines.
The three standards have "failed to provide predictable, fair results", the board said in its decision, which states that future cases should be considered according to the Wright Line standard.
According to the Wright Line standard, in order to act against an employer, the Attorney General must initiate a demonstration that the employee is working on protected activity that the employer knew about and that the employer had animus against the protected activity. , and that there was sufficient evidence that there was a causal link between the two.
"If the Advocate General has made his first case, the burden of persuasion shifts to the employer to prove that he would have taken the same action even in the absence of the activity in section 7," NLRA provision protecting employees' coordinated activities.
Tom H. Luetkemeyer, a partner with the Hinshaw & Culbertson LLP in Chicago, said the decision means employers should not tolerate a hostile work environment under federal law, including Title VII, the Disabled Americans Act or the Employment Age Discrimination Act. enables employers to police their workforce, "he said.
Lawyers representing employers praised the decision.
Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, said it" complies with the guidance provided by the EEOC. has given (employers) for decades, namely that you do not have to tolerate discriminatory behavior for whatever reason. ”
The decision "Makes sense because the EEOC has a very similar test-shift test when assessing allegations of discrimination under Title VII," said Jason Kim, a partner with Neal Gerber Eisenberg LLP in Chicago.
The verdict is "Well Delayed," said New York-based Eve I. Klein, chair of the Duane Morris LLP's Employment, Labor, Benefit and Immigration Internship Group. She said "it makes a lot of sense" to apply the well-known Wright Line .
Seth T. Ford, a partner with Troutman Pepper Hamilton Sanders LLP in Atlanta, said: "I think most parties really like a unified approach that ensures predictability, and this approach enables employers to hold employees accountable for their misunderstandings as long as they do it fairly and consistently. "
" This is indeed a balance between … the right of trade unions to prevent repressive decisions against an increased awareness and sensitivity to the irregularities of abuse and hostile behavior, especially with regard to behavior. or comments that are discriminatory or harassing in nature, "he said.
New York-based soloist Joshua Parkhurst, who represents workers, said the decision follows a trend under the current administration that turns protected activity" into what in is essentially a case of discrimination. "
NLRA" gives employees an affirmative right to share take in coordinated, protected activity, "he said. The board is applying "a fig leaf to change the NLRA," he said.