Published
September 24, 2026
In a significant win for common sense and harmonious workplaces, the National Labor Relations Board (NLRB) has formally abandoned its Biden-era standard for evaluating offensive or abusive employee conduct that occurs during protected workplace activity. The Board concluded that its 2023 decision in Lion Elastomers could no longer stand following a ruling by the U.S. Court of Appeals for the Fifth Circuit, effectively restoring the more employer-friendly framework established in its 2020 General Motors decision.
The dispute centers on a longstanding tension in labor law: how to balance employees’ rights to engage in protected concerted activity with employers’ obligations to maintain a respectful, harassment-free workplace.
Under the Biden Board’s Lion Elastomers decision, employees were afforded broad protection when engaging in union activity, collective complaints, picketing, or other conduct protected by the National Labor Relations Act. The Board revived a series of context-specific tests that often shielded employees from discipline even when their conduct included profane, abusive, or otherwise offensive language. Employers have rightly criticized that standard, which made it more difficult to enforce workplace civility rules and could create conflicts with anti-discrimination and anti-harassment obligations.
The newly restored General Motors framework takes a different approach. Rather than focusing primarily on the context in which offensive conduct occurred, it applies the familiar Wright Line analysis used in many labor law cases. Under that test, an employer may discipline an employee for misconduct occurring during protected activity if it can show that it would have imposed the same discipline regardless of the employee’s protected conduct.
For employers, the practical impact is significant. The ruling provides greater confidence that organizations can address threatening, discriminatory, harassing, or abusive behavior without automatically risking an unfair labor practice charge simply because the conduct arose in connection with protected activity. At the same time, employers must continue to ensure that disciplinary decisions are applied consistently and are not motivated by anti-union animus.
The decision marks another notable shift in federal labor policy and underscores how changes in Board membership, judicial review, and administrative priorities continue to shape the rules governing labor-management relations.
About the author
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
