New NLRB Ruling Impacts Employee Discipline Over Outbursts

On May 1, 2023, the National Labor Relations Board (NLRB) reversed its 2020 ruling from General Motors LLC in Lion Elastomers LLC Il, changing the standards relating to discipline or discharge of workers who overstep with offensive or abusive outbursts while engaging in activities protected by the National Labor Relations Act (NLRA). The new employee discipline ruling grants more protection to employees during certain work-related activities when such misconduct is observed and is evaluated based on the context of the work-related activity. 

What does this mean for social media evidence?

The new ruling makes it more difficult for employers to discipline employees who make inappropriate comments or act improperly during otherwise protected concerted activities. So, if a disgruntled employee makes a profane, harassing, or inappropriate comment on a social media post, the employee is now more protected from disciplinary actions than before.

Previously, the Wright Line test would serve as an evaluation tool for such outbursts like the example above. The test evaluates the motive of the employer in taking action against an employee. By claiming that disciplinary actions against the employee would be the same no matter if the inappropriate behavior occurred during NLRA protected activities or not, the employer easily met the necessary burden to win in judicial proceedings. Now, decisions are made according to setting-specific standards regarding an employee’s misconduct. 

How will social media posts be evaluated?

An employee’s post on social media will now be evaluated under a totality of circumstances test. This means that all information surrounding the outburst or misconduct must be considered as context for the behavior. In the case of social media, an employee’s public post will be evaluated based on all circumstances surrounding the outburst. This means that social media and web evidence can play a significant role in the proceedings and ultimate ruling. And not just the post in question, but other social media posts and open-source information online could be relevant in these scenarios. 

What does this new ruling mean for web investigations?

Because the totality of circumstances test is a metric of evaluation for instances of employee outbursts online, collecting and preserving any and all open source information is imperative to developing a consistent and compliant defense strategy. In order to collect information in compliance with the federal rules of evidence, firms should employ a third party web discovery team to ethically locate and preserve evidence found online. It’s important to collect information quickly and discreetly so as to not tip-off the subject of an investigation and act before the subject has a chance to alter or remove online evidence. 

SMI Aware uses a combination of expert analysts and proprietary technology to scour over 500 social media platforms and web results to find information for your case online. Our process is ethically and federally compliant meaning the results of our collection are defensible in court. And when our investigation is complete, we deliver a comprehensive portfolio of the subject’s online presence with searchability, pictures, metadata, and source code. Don’t risk overlooking valuable information online. Contact SMI Aware to start investigating to mitigate risk and win cases. 

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