The NLRB Affirms Its Test for When Adverse Action Is Motivated by Protected Conduct

In Intertape Polymer Corp., the National Labor Relations Board (the Board) reaffirmed the standard it will apply when determining whether an adverse employment action was motivated by employee conduct protected by the National Labor Relations Act (NLRA). Under the Wright Line test, the NLRB General Counsel bears the initial burden of establishing that (1) the employee was engaged in union or other protected activity, (2) the employer knew of that activity, and (3) the employer had animus for the union or other protected activity. If the General Counsel sustains this initial burden, the burden shifts to the employer to establish it would have taken the same action irrespective of the union or other protected activity.

The Board explained that a 2019 decision in Tschiggfrie Properties, Ltd. created unnecessary confusion by purporting to clarify the Wright Line standard. The 2019 decision suggested that the General Counsel must show that the animus was specifically directed toward the impacted employee’s own union or protected activities. The Board’s decision in Intertape Polymer specifies that either direct or circumstantial evidence can support a finding of animus, and that there is no requirement that the demonstrated animus be specifically directed at the impacted employee’s own protected conduct.