NLRB restores employer flexibility to discipline employee misconduct

The National Labor Relations Board (NLRB) recently reaffirmed that although employees have the right to engage in protected concerted activity, that right doesn’t give them a free pass to engage in workplace misconduct.

Background

In Lion Elastomers LLC, 375 NLRB No. 41 (September 23, 2026), the NLRB confirmed that employers may discipline employees for abusive conduct occurring during otherwise protected activity, provided they can establish the discipline was based on the misconduct—not the protected activity.

The decision restores the Wright Line burden-shifting framework adopted in General Motors LLC (2020), replacing standards that often shielded employee misconduct from discipline simply because it occurred in the course of union or other protected concerted activity. The decision marks the latest turn in a years-long back-and-forth over how the National Labor Relations Act (NLRA) treats employee misconduct.

Familiar standard returns

For decades, the Board applied different standards to employee misconduct depending on the setting in which it occurred, including workplace discussions, picket lines, and social media. Those standards sometimes protected employees who engaged in profanity, personal attacks, or other abusive behavior while exercising their NLRA rights.