In a decision that had been anticipated, the National Labor Relations Board (“NLRB” or “Board”) abandoned its short-lived burden-shifting test for determining the legality of employer discipline of employees found to have engaged in abusive or inappropriate conduct. Robbed of the ability to simply demonstrate any such discipline was not in retaliation for protected conduct. Employers will once again be called upon to grapple with a list of indefinite factors that has oftentimes rendered similar outrageous workplace conduct immune from discipline.
Continue Reading …But Words Will Never Harm Us? The NLRB Restores Precedent Protecting Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities