The National Labor Relations Board (NLRB) recently made a decision, (Lion Elastomers LLC II) reversing a prior decision in General Motors LLC 369 NLRB No. 127 (2020). The Board relied on the “Wright Line standard” in the General Motors case which made it easier to discipline or discharge for misconduct that happens as part of protected activity. Protected activity is defined as a situation “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” Examples of protected activity can include, but is not limited to, “water cooler talk” and some other types of employee communications regarding dissatisfaction in the workplace, their own salaries, and other terms and conditions of their employment. The most recent decision reverts to traditional standards called “setting-specific” standards. The NLRB “noted that labor disputes are often heated” and “reaffirmed the principle that employees must be given some leeway for their behavior while engaging in protected concerted activity, in order to safeguard their statutory rights.” The Chairman, Lauren McFerran, stated that the General Motors decision broke judicially approved precedent and “did not give adequate consideration to the importance of worker’s rights under the National Labor Relations Act.” McFerran also stated that “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of the important activity-not as if it occurred in the ordinary workplace context.”

The recent reversal is a reminder of the importance of ensuring management actions do not dissuade employees from engaging in protected concerted activity. Employment handbooks should contain language with a disclaimer to show that the employer is not trying to dissuade employees from exercising their rights. If you are an employer that hasn’t looked at their handbook for a while or don’t have such a disclaimer, consider contacting Southwestern HR Consulting (SWHRC) for help with your handbook!

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


Phone: 505-270-7494 | Email:

PO Box 14274 | Albuquerque, NM 87191

SWHRC - We Keep HR Simple!