The National Labor Relations Board (NLRB) has restored a more employer-friendly rule for evaluating employee misconduct that occurs during union activity or other protected group activity.
The change stems from the Fifth Circuit Court of Appeals’ 2024 decision involving Lion Elastomers. The court vacated the NLRB’s 2023 Lion Elastomers decision, which had made it harder for employers to discipline employees for offensive or abusive conduct connected to protected activity. On September 23, 2026, in a precedential decision, the NLRB recognized that the Fifth Circuit’s ruling restored the earlier General Motors standard.
What Changed
The NLRB will again use the General Motors approach, which applies the traditional Wright Line test. In simple terms, the question is:
Did the employer discipline the employee because the employee engaged in protected activity, or because the employee engaged in misconduct that would have resulted in discipline anyway?
If the employer can show it would have imposed the same discipline for the misconduct even without the protected activity, the discipline is more likely to be lawful.
The former Lion Elastomers framework used different tests depending on where the conduct occurred—for example, during a meeting with management, on a picket line, or in communications with coworkers. As a result, employers faced challenges disciplining conduct they viewed as abusive, profane, discriminatory, or disruptive when it was connected to protected concerted activity. The Fifth Circuit vacated that framework, and the NLRB has now confirmed that the General Motors standard once again applies in these cases.
Why This Matters
This decision gives employers more flexibility to enforce neutral workplace rules involving:
- Harassment and discrimination
- Threats, intimidation, and workplace violence
- Abusive or disruptive conduct
- Safety violations
- Social-media conduct
- Respectful-workplace and civility expectations
The ruling helps reduce the difficult position employers previously faced when employee conduct could be protected under the National Labor Relations Act but also raised concerns under anti-harassment, anti-discrimination, or workplace-safety policies. Employers now have stronger grounds to enforce workplace conduct rules when they can demonstrate that discipline was imposed because of misconduct rather than protected activity.
What Employers Should Still Do
The decision does not mean employers may discipline employees simply because their statements are angry, profane, or connected to union organizing or group complaints. Employers should still make decisions carefully and consistently.
Before taking action, employers should:
- Identify whether the employee was engaging in union activity, organizing, group complaints, wage discussions, or other protected concerted activity.
- Clearly identify the separate misconduct that violates a workplace rule or policy.
- Confirm that the policy is neutral and has been enforced consistently against other employees.
- Review comparable situations involving employees who were not engaged in protected activity.
- Document the specific conduct, policy violation, prior enforcement history, and legitimate reason for discipline.
- Involve HR or labor counsel when misconduct occurs during organizing, bargaining, picketing, group complaints, or similar activity.
Bottom Line
The NLRB’s decision restores a more practical framework for employers. Employees do not receive automatic protection for misconduct merely because it happens during union or other protected concerted activity. But employers must still be able to show that discipline was based on the misconduct – not retaliation for protected activity – and that they would have taken the same action in comparable circumstances.
If you have questions about this decision, employee discipline, protected concerted activity, or compliance with the National Labor Relations Act, please contact attorney Susanna Fultz or any member of Barley Snyder’s Labor Law Practice Team.
