NLRB Restores Employer-Friendly Standard for Employee Outbursts During Protected Activity

Employers have regained significant flexibility in addressing employee outbursts, even when those outbursts occur in conjunction with protected workplace activity. On September 23, 2026, the National Labor Relations Board issued Lion Elastomers LLC, restoring the causation framework established in General Motors LLC and moving away from the Biden Board's more employee-protective approach to workplace outbursts.[1]

At its core, that employee-protective approach allowed abusive and offensive outbursts to go unchecked so long as they were couched in activity that was otherwise protected by Section 7 of the National Labor Relations Act. The Board’s current decision sets labor law back on a more reasonable course in that employers may lawfully discipline employees for such outbursts if they would have done so regardless of any protected activity in which the employee engaged.

This decision represents the first overturn of Biden-Board precedent by the newly constituted Republican majority. It signals that more such decisions are likely on the horizon. The decision has important implications for workplace investigations, disciplinary decisions, and the enforcement of workplace conduct rules.

The Board's September 2026 decision represents the latest development in a years-long shift regarding how the NLRB evaluates employee misconduct occurring during otherwise protected activity. Historically, the Board applied a setting-specific test to determine whether an employee lost the protection of the Act because of abusive, offensive, or insubordinate conduct., considering: "(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice."[2]

In 2020, however, the Board in General Motors LLC rejected these setting-specific standards and adopted the traditional Wright Line causation framework used in many discrimination cases under the Act.[3] Three years later, the Biden-era Board reversed course in Lion Elastomers II, overruling General Motors and reinstating the former standards for analyzing employee misconduct occurring during protected activity.[4]

The Board's new decision restores the General Motors framework. Under that standard, the General Counsel must initially establish that the employee engaged in Section 7 activity, the employer knew of that activity, and the protected activity motivated the discipline. If that showing is made, the burden shifts to the employer to prove that it would have imposed the same discipline even absent the protected activity because of the employee's misconduct.[5] As a practical matter, the inquiry now focuses less on whether the employee's conduct retained the Act's protection and more on whether the employer would have disciplined the employee regardless of any protected activity.

The Board's decision provides employers with greater flexibility to discipline employees for threatening, abusive, discriminatory, or otherwise inappropriate workplace conduct, even when that conduct occurs in connection with protected concerted activity.

That said, the decision does not eliminate the risk of unfair labor practice liability. Employers remain prohibited from disciplining employees because they engage in union activity or other protected conduct. Accordingly, employers should continue to:

• apply workplace conduct rules consistently;
• document the legitimate business reasons supporting disciplinary decisions;
• ensure that similarly situated employees are treated similarly regardless of union activity or protected conduct; and
• review disciplinary decisions involving employee complaints about terms and conditions of employment, organizing efforts, or other Section 7 activity before taking action.

Employers also should expect continued changes in Board law. Because the current Board majority has now demonstrated a willingness to revisit Biden-era precedent, additional reversals in areas such as workplace policies, organizing rights, handbook rules, and election procedures may follow over the coming months.

With the Board’s Republican majority now in place and willing to revisit Biden-era precedent, employers should watch for potential developments in several key areas:

• Workplace Rules and Handbook Policies. In Stericycle, Inc. (2023), the Biden Board adopted a more restrictive standard for evaluating the legality of facially neutral workplace rules, requiring employers to demonstrate that any rule that could reasonably be interpreted as chilling Section 7 activity is narrowly tailored to serve a legitimate business interest. A reversal could restore a more employer-friendly framework that gives employers greater latitude in maintaining reasonable workplace conduct and civility policies.
• Union Election Procedures. In Cemex Construction Materials Pacific, LLC (2023), the Board established a framework under which an employer that commits unfair labor practices during a union election campaign may be required to recognize and bargain with the union based on authorization cards, bypassing a traditional secret-ballot election. Employers should monitor whether the Board revisits this decision, which significantly expanded the circumstances under which the Board may issue bargaining orders.
• Severance Agreement Restrictions. In McLaren Macomb (2023), the Board held that employers violate the Act by offering employees severance agreements containing broad confidentiality and non-disparagement provisions that could reasonably be construed as restricting Section 7 rights. A reversal or narrowing of this decision would restore employer flexibility in structuring severance agreements with customary protective covenants.
• Independent Contractor Classification. In The Atlanta Opera, Inc. (2023), the Board returned to a broader, more employee-friendly standard for determining whether workers are employees or independent contractors under the Act. Employers that rely on independent contractor relationships should watch for any effort to restore a standard that gives greater weight to entrepreneurial opportunity and the parties’ contractual arrangements.
• Expanded Remedies. In Thryv, Inc. (2023) and related decisions, the Biden Board expanded the scope of remedies available for unfair labor practices to include consequential damages beyond traditional back pay. A reversal could limit the Board’s remedial authority and reduce the potential financial exposure employers face in unfair labor practice proceedings.

Employers should consider reviewing workplace conduct policies, civility rules, anti-harassment policies, and disciplinary practices in light of the Board's decision. Although the new standard provides greater flexibility to address inappropriate workplace behavior, employers must still ensure that disciplinary decisions involving employee complaints, organizing activity, or other protected concerted conduct are supported by legitimate, nondiscriminatory reasons.

If you have questions about this decision or its impact on your organization's labor relations strategy, workplace investigations, disciplinary decisions, or handbook policies, please contact any member of Michael Best's Labor Management team. We would welcome the opportunity to assist.

As always, we will continue monitoring developments from the NLRB and will keep employers informed of significant changes in Board law.

[1] Lion Elastomers LLC, 375 NLRB No. 41, slip op. at 1, 5 (Sept. 23, 2026) (“Lion Elastomers III”) (citing General Motors LLC, 369 NLRB No. 127, slip op. at 7–9 (2020)).

[2] Lion Elastomers LLC, 372 NLRB No. 83, slip op. at 2–3, n.6 (2023) ("Lion Elastomers II") (quoting Atlantic Steel Co., 245 NLRB 814, 816 (1979)).

[3] General Motors, 369 NLRB No. 127, slip op. at 7–9.

[4] Lion Elastomers II, 372 NLRB No. 83, slip op. at 2–3.

[5] Lion Elastomers III, 375 NLRB No. 41, slip op. at 2, n.5.