On May 1, the National Labor Relations Board issued a decision that will restore protection for employee misconduct when it occurs during protected concerted activity.

In Lion Elastomers LLC II, the Board overruled 3-1 a decision of the Trump-era Board that found an employer could discipline or discharge employees for misconduct – even if the misconduct occurred in connection with protected concerted activity – as long as the protected activity was not the motivation for the employer’s actions.

The Board now, with a Biden-appointed majority, has returned to requiring the use of three “situation-specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during protected concerted activity under the National Labor Relations Act.

The following three situation-specific standards will again apply in employee misconduct cases:

• The Atlantic Steel standard, which governs employees’ conduct toward management.
• The totality-of-the-circumstances standard, which governs employees’ social media activity and most cases involving conversations among employees.
• The Clear Pine Mouldings standard, which applies to picket line activity.

Under each of the standards, the Board gets to decide whether the misconduct at issue is severe enough – in the Board’s subjective view – to be unprotected under the NLRA. There is no bright line for employers. Even when it comes to egregious misconduct such as use of racial epithets, sexual harassment,...

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