NLRB Reinstates Previous Standard for Offensive Worker Conduct

The National Labor Relations Board (NLRB) has effectively abandoned a Biden-era standard that gave employees greater leeway for offensive or abusive conduct while engaging in protected workplace activity. It has thereby reinstated a framework that makes it easier for employers to discipline workers for misconduct.

In a divided decision issued Sept. 23 in Lion Elastomers LLC, the NLRB’s Republican majority concluded that the U.S. Court of Appeals for the Fifth Circuit invalidated the board’s 2023 Lion Elastomers ruling when it vacated the decision two years ago. The board therefore returned to the standard established in General Motors LLC in 2020. 

The majority stressed that it was not formally overruling Lion Elastomers. Rather, it said it was recognizing the legal effect of the Fifth Circuit’s decision now that the case had returned to the board.

For employers, however, the practical result is significant: General Motors once again supplies the framework for determining whether employees can be disciplined for abusive conduct that accompanies activity otherwise protected by the National Labor Relations Act (NLRA).

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A Years-Long Fight over Workplace Misconduct

The dispute traces back to Lion Elastomers’ discipline and discharge of an employee following heated exchanges with management over workplace issues, including overtime and safety. The NLRB initially found the discipline unlawful using the Atlantic Steel standard, which considered factors including the location and subject of the discussion and the nature of the employee’s outburst. 

But in 2020, the first Trump administration’s NLRB issued General Motors, replacing Atlantic Steel and other setting-specific standards with the Wright Line burden-shifting framework. Under that approach, the general counsel must initially establish that protected activity was a motivating factor in an employer’s disciplinary decision; an employer can then show it would have imposed the same discipline even without the protected conduct. SHRM submitted an amicus brief in General Motors and has supported the broader policy direction reflected in that standard. In the brief, SHRM urged the Board to move away from standards that could protect racist, sexist, profane, or abusive conduct simply because it occurred during otherwise protected activity. 

The Biden-era board reversed course in 2023. In Lion Elastomers, it overruled General Motors and restored three context-specific tests covering workplace interactions with management, picket-line misconduct, and social media and other employee communications. The change raised concerns among employers about reconciling NLRA protections with obligations to prevent discriminatory and harassing workplace conduct. 

The Fifth Circuit vacated that decision in 2024, finding that the NLRB had exceeded the scope of an earlier court remand and violated Lion Elastomers’ due process rights by overruling General Motors without giving the company an adequate opportunity to address the issue. The court ordered the board to apply General Motors to the case. 

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New Board Majority Makes Its Mark

The latest ruling also demonstrates the consequences of the NLRB’s changed composition. James Macy was sworn in Aug. 17, giving Republicans a three-member majority alongside Chair James Murphy and Scott Mayer. David Prouty, who was originally appointed by President Biden and was confirmed for a second term this summer, is currently the board’s sole Democrat. 

Prouty dissented, arguing that the majority departed from the NLRB’s traditional policy of “nonacquiescence,” under which the agency may continue applying its precedent in other cases despite an adverse appeals court ruling. Murphy, meanwhile, emphasized in a concurrence that the majority was not formally overruling Lion Elastomers, saying doing so in this proceeding could itself exceed the scope of the Fifth Circuit’s remand. 

For HR professionals, the immediate takeaway is that misconduct occurring alongside protected concerted activity does not automatically insulate an employee from discipline. Under the restored General Motors framework, the central question is whether the employer acted because of protected activity or would have imposed the same discipline for the misconduct itself.