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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, August 2, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

This course is $0 with these passes:

CLE
ALL

This CLE webinar will focus on the NLRB's decision reviving setting-specific standards to be considered before disciplining employees for misconduct. The panel will discuss best practices for applying the standards and advise on how to avoid an unfair labor practice (ULP) while preventing discrimination in the workplace.

Faculty

Laura Lawless
Partner
Squire Patton Boggs

Ms. Lawless is a trial lawyer who represents employers before federal and state courts and administrative agencies, as well as in arbitration and mediation proceedings, defending employers in matters arising under federal and state employment laws, including claims of discrimination, harassment, retaliation, whistleblower retaliation, wrongful termination, wage and hour violations, and breach of contract, as well as in noncompetition, nonsolicitation, nondisclosure, trade secret and unfair competition cases. She also counsels and collaborates with human resources professionals, including assisting in workplace investigations, auditing wage and hour practices, reviewing and advising on leaves of absence, preparing executive employment agreements and separation agreements, drafting employment policies and handbooks, among other matters. Ms. Lawless is also a frequent contributor and speaker on employment and labor law topics.

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John S. Bolesta
Special Counsel
Sheppard Mullin Richter & Hampton LLP

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the NLRB, contract negotiation and labor arbitrations. Additionally, Mr. Bolesta advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees. He also regularly counsels clients on all aspects of federal, state, and local equal employment opportunity and fair employment practices laws and regulations, and regularly advises clients on confidentiality, trade secrets and noncompete matters. 

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Description

On May 1, 2023, the NLRB revived setting-specific standards requiring union and non-union employers to consider the context of employee misconduct before taking disciplinary action. Employers must once again consider three indefinite standards to determine whether they may take an adverse employment action against an employee whose misconduct may be considered protected concerted activity.

It is now more difficult for employers to discipline workers for profane, racist, sexist, or other types of offensive workplace conduct without risking a ULP charge. Employers face a dilemma as to whether to commit a ULP or to allow behavior that creates a discriminatory work environment and subjecting the employer to significant liability under federal, state, and local employment laws.

Listen as our expert panel discusses the setting-specific standards and best practices for their application and advises on navigating conflicting obligations under the NLRA while preventing discriminatory workplace conduct.

Outline

  1. Summary of history of NLRB decisions leading to Lion Elastomers II
  2. The three setting-specific standards to determine whether misconduct may be considered protected activity and best practices for employer application of the standards
    1. Outbursts to management in the workplace (Atlantic Steel test)
    2. Social media posts (totality of the circumstances test)
    3. Abusive picket line conduct (Clear Pine Mouldings standard)
  3. Assisting clients in navigating conflicting obligations between NLRA compliance and preventing discrimination claims

Benefits

The panel will review these and other noteworthy issues:

  • What are the three setting-specific standards revived by the NLRB that should be considered by union and non-union employers before disciplining employees for workplace misconduct?
  • How to apply the standards to determine whether workplace misconduct may be considered protected concerted activity
  • How to apply the standards when an employee commits multiple acts of misconduct under varying circumstances
  • How to assist employers in navigating conflicting obligations under the NLRA while also preventing discrimination and harassment in the workplace