Takeaways
The National Labor Relations Board has returned to the burden-shifting standard for determining whether employees lose National Labor Relations Act protection for misconduct during Section 7 protected activity.
Under the restored test, the Board general counsel must prove, by a preponderance of evidence, that employees engaged in union or protected concerted activity, the employer knew of that activity, and antiunion animus was a motivating factor in the adverse action.
If the general counsel satisfies the initial burden, the employer must prove that it would have taken the same disciplinary action absent the employee’s protect activity.
Employers’ consistent policy enforcement and thorough documentation continue to be important in defending employee disciplinary decisions.
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