On August 28, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a significant decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023), which provides crucial clarification concerning the burden of persuasion in mixed-motive cases related to adverse employment actions.
The Board revisited and clarified Tschiggfrie Properties, 368 NLRB No. 120 (2019), explicitly stating that Tschiggfrie accurately delineated the appropriate standard. This interpretation plays an essential role in guiding how the General Counsel approaches her initial burden of persuasion in cases with varying motives for adverse employment actions.
Mixed-motive cases typically arise when an adverse employment decision, like termination or demotion, is allegedly due to both lawful and unlawful motives. In such situations, the burden of proof often shifts between the employer and the employee, making it a complex and nuanced area of labor law.
In the Tschiggfrie Properties case, the NLRB confirmed that the burden of proof remains on the General Counsel throughout the first stage of the mixed-motive test. This requirement is to demonstrate, by its preponderance, that an employee’s protected conduct was a motivating factor in an adverse employment action.
Further details about the decision, as first reported by Proskauer – Labor Relations, can be found here. This distinction will no doubt be instrumental in shaping the actions of both labor law practitioners and corporations involved in labor disputes.
The issuance of this decision serves as a clear reminder that even established legal principles can face scrutiny and modification over time, demanding constant vigilance and adaptation from all active stakeholders. Therefore, global law firms, corporate legal departments, and labor law practitioners must stay updated on these developments to provide effective counsel to their stakeholders.