Brooklyn Journal of Corporate, Financial & Commercial Law

First Page



Before the National Labor Relation Board’s (NLRB) July 2020 decision in General Motors LLC and Charles Robinson, employers faced difficulty in disciplining employees that engaged in protected activity under the National Labor Relations Act (NLRA) when their behavior was abusive. However, this changed after the NLRB adopted the Wright Line standard in General Motors, a burden-shifting analysis that gives employers the opportunity to prove that the employer would have taken the same action even without the NLRA protected activity. Compared to the NLRB’s prior standards, this standard offers employers a clear-cut defense and the ability to adhere to discrimination laws and their workplace policies, but it is too broad in that it does not recognize the heightened emotions of employees during turbulent working conditions. This is an especially prevalent concern during the COVID-19 pandemic, where employees must advocate for themselves as they face several setbacks including: lack of assistance from the Occupational Safety and Health Administration, difficulty in receiving workers compensation or inability to take off work after contracting COVID-19, and fear of not receiving unemployment benefits on time. This Note seeks to establish that by creating per se unprotected categories of behavior, which include conduct that is offensive to a protected class or conduct that could reasonably lead to violence, employers can use these unprotected categories as a defense when the burden shifts to them in the Wright Line analysis. Such a tactic would also eradicate employees’ fears of being disciplined for passionately advocating for their rights in a manner that may be considered offensive, but not to the same degree as the per se unprotected categories.