On September 23, 2026, the NLRB issued its decision in Lion Elastomers LLC, 375 NLRB No. 41, restoring the General Motors standard for evaluating abusive or offensive conduct during protected concerted activity and giving employers greater flexibility to discipline workplace misconduct.
The decision restores the familiar Wright Line framework, which permits employers to justify discipline for abusive, offensive, or otherwise inappropriate workplace misconduct by demonstrating that they would have taken the same action absent the employee’s protected activity. It also eases the tension employers have faced between their NLRA obligations and their duty to maintain harassment-free workplaces.
Background: Shifting Standards for Offensive Conduct
For decades, the Board applied special rules when evaluating whether employees who engaged in abusive or offensive conduct during protected activity retained the protection of the NLRA. In workplace interactions with management, those cases were analyzed under the four-factor Atlantic Steel test, which considered the location of the discussion, its subject matter, the nature of the employee’s outburst, and whether the conduct was provoked by an employer unfair labor practice. In practice, this often resulted in findings that employers violated the NLRA when they disciplined employees for offensive language or otherwise inappropriate conduct because the misconduct occurred during protected activity, such as raising concerns at a team...
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