Employer-Friendly NLRB Ruling Broadens Employee Discipline Approaches on the Shop Floor

When does an employee’s heated outburst cross the line between protected activity and discipline-worthy conduct? For employers, the answer just got clearer. On Sept. 23, 2026, the National Labor Relations Board (the Board) confirmed that the setting-specific tests established in Lion Elastomers for assessing whether employers may discipline abusive employee conduct no longer apply. In this decision, the Board returned to the Wright Line standard it had adopted in General Motors (2020). Lion Elastomers LLC, 375 NLRB No. 41 (2026). After several years of stalling, the employer-friendly approach is back in gear.

How We Got Here

For many years, the question of whether an employee’s misconduct could be punished depended on the situation: a vulgar outburst in a supervisor’s office, a threat shouted from a picket line and an offensive post on social media were each evaluated under a different framework. In General Motors LLC, 369 NLRB No. 127 (2020), the Board replaced that framework with Wright Line, 251 NLRB 1083 (1980), the standard it applies in any case involving a question as to whether an employee was disciplined, terminated or otherwise retaliated against for engaging in protected activity.

In 2023 a new Board majority overruled General Motors and revived Lion Elastomers LLC, 372 NLRB No. 83 (2023), and employers noticed the difference. Even crude, offensive or, in some cases, threatening behavior was often shielded if it was connected to protected activity such as complaining about pay or supporting a union, and fair enforcement of a neutral conduct rule did not ensure a defense. Many employers also feared that they could not comply with both labor law and their duty to prevent harassment and hostile work environments under federal employment law standards. In 2024, the Fifth Circuit overturned Lion Elastomers, holding that the Board improperly exceeded its authority. The Court held that the Board had been asked only to apply General Motors to the case, not to overrule it, and the company had never been given an opportunity to respond to the change. Lion Elastomers, LLC v. NLRB, 108 F.4th 252 (5th Cir. 2024). Last week, the Board gave effect to the Fifth Circuit’s ruling, restoring General Motors as the governing standard.

The New Decision

In the decision itself, the majority held that “General Motors constitutes extant Board precedent for deciding whether an employee has lost the Act’s protection for abusive conduct that arose in the course of Section 7 protected activity.”

In practical terms, to show that an employee was improperly disciplined for an outburst the NLRB must now prove three things: (1) the employee was engaged in protected activity, (2) the employer knew it and (3) that activity was a motivating reason for the discipline. Even if the NLRB clears that bar, the employer may nevertheless prevail if it can show the discipline would have happened anyway — for example, by pointing to other employees it disciplined for comparable abusive or offensive behavior. The question is no longer whether an outburst was “bad enough” to forfeit legal protection, but why the employer acted, and consistent enforcement of its rules is an employer’s best defense. What’s worth noting, however, is that the majority left the door open to future challenges to General Motors, so this may not be the last word.

Key Takeaway for Employers

In sum, employers now have greater freedom in dealing with abusive, profane or threatening behavior in the workplace, even if that behavior occurs in conjunction with protected activity. Under the General Motors standard, employers should:

• Maintain clear, lawful conduct and civility policies.
• Apply those policies consistently, regardless of whether the employee is involved in union or other protected activity.
• Document incidents promptly and keep records of how similar conduct has been handled in the past.

Consistency is an employer’s best defense. For questions about how this decision affects your business, or for help reviewing your conduct policies before disciplining an employee, please contact Michael G. Tierce, Elisabeth K. Freer or a member of Stevens & Lee’s Labor and Employment group.