The following article was first published in Shipman & Goodwin‘s Employment Law Letter. It is reposted here with permission.
The National Labor Relations Board just made it a lot easier for employers to discipline employees who act out during union or other protected activities.
On Sept. 23, 2026, in Lion Elastomers LLC, 375 NLRB No. 41, the board’s new Republican majority flipped back to an older, more employer-friendly rule called Wright Line.
For years, the NLRB had a complicated context-specific rule that involved factors such as where an outburst happened, how severe it was, and whether the employer provoked it.
Under those factors, employees could often get away with relatively offensive behavior—including profanity, insults, and even some racially or sexually charged language, provided it was tied to union activity.
Employers struggled under this rule as they had to tolerate conduct that they would not ordinarily allow.
In 2020, the NLRB reverted to a prior standard under its precedent of Wright Line, which asks a simpler question: did the employer discipline the employee because of the protected activity, or would the employer have disciplined the employee regardless of the protected activity?
This standard applied for a few years, but in 2023, the NLRB changed direction yet again, and went back to the context-specific rule. However, this standard did not last long either.
On September 23, 2026, the latest composition of the NLRB restored the...
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