NLRB Limits Employers’ Ability to Discipline New Jersey Workers Engaged in Protected Activities

The National Labor Relations Act (NLRA) protects a wide range of workplace rights. New Jersey employment laws also address labor organizing, but the NLRA offers broad protections nationwide. Decisions from federal courts and the National Labor Relations Board (NLRB) have clarified how workers may exercise their rights to organize themselves and engage in collective bargaining with their employers, as well as what employers may and may not do. In May 2023, the NLRB issued a ruling that made rather sweeping changes to the manner in which employers may discipline employees who are engaged in protected activities. The decision overturns a 2020 NLRB decision which also made sweeping changes. In that sense, the May 2023 decision reinstates rules and standards that had been in place for decades. The end result is greater protection for workers engaged in labor organizing.

Section 7 of the NLRA provides a brief but expansive list of rights enjoyed by workers in New Jersey and throughout the country. The list of prohibited acts by employers found in § 8(a) of the statute is similarly short on details. Section 8(a)(1), for example, merely states that employers may not “interfere with, restrain, or coerce employees” with regard to the rights protected by § 7. Decades of decisions from the NLRB have provided practical details about how the NLRA protects workers.

The May 1, 2023 decision involves an employee who was discharged by their employer for alleged “abusive conduct.” The employee claimed that the discharge violated the NLRA since they were engaged in activities protected by § 7 at the time. The NLRB ruled in favor of the employee in May 2020. It held at the time that the employer violated §§ 8(a)(1) and (3). The employer appealed to a Circuit Court of Appeals. While the case was pending in that court, the NLRB issued a ruling in an unrelated case in July 2020 that made significant changes.

When it issued its May 2020 ruling in the current case, the NLRB drew on several precedents. It applied the four-part Atlantic Steel test, named for a 1979 NLRB decision that involved an employee’s outburst during a discussion with management. The test determines when an employee might lose the protection of § 8(a) because of their conduct:
1. Where did the conduct occur?
2. What was the subject matter under discussion at the time?
3. What was “the nature of the employee’s outburst”?
4. Did an unfair labor practice provoke the conduct in any way?
The July 2020 decision expressly overturned Atlantic Steel, finding that it “has failed to be an effective legal standard.” The decision overturned several other precedents that the Board had relied upon two months earlier.

The appellate court sent the current case back to the NLRB to address the impact of the July 2020 decision. The Board decided to overturn that decision and reinstate all of the precedents that it reversed, including Atlantic Steel. It reaffirmed its May 2020 decision in the employee’s favor.

If your employer has engaged in acts that have caused you harm, and that you believe violate federal or state law, you need an experienced employment attorney who can help you assert your legal rights. The Resnick Law Group advocates for workers in New Jersey and New York who have experienced unlawful workplace practices. To schedule a confidential consultation with a member of our team, please contact us today online, at 973-781-1204, or at 646-867-7997.

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