NLRB Restores Employer-Friendly Standard for Workplace Outbursts During Protected Activity

The Big Picture

The NLRB just made it a lot easier for employers to discipline employees who act out during union or other protected activities. On September 23, 2026, in Lion Elastomers LLC, 375 NLRB No. 41, the Board’s new Republican majority flipped back to an older, more employer-friendly rule called Wright Line.

What Changed?

For years, the NLRB had a complicated context-specific rule that involved factors such as where an outburst happened, how severe it was, and whether the employer provoked it. Under those factors, employees could often get away with relatively offensive behavior—including profanity, insults, and even some racially or sexually charged language, provided it was tied to union activity.  Employers struggled under this rule as they had to tolerate conduct that they would not ordinarily allow.

In 2020, the NLRB reverted to a prior standard under its precedent of Wright Line, which asks a simpler question: did the employer discipline the employee because of the protected activity, or would the employer have disciplined the employee regardless of the protected activity?   This standard applied for a few years, but in 2023, the NLRB changed direction yet again, and went back to the context-specific rule.  However, this standard did not last long either.

On September 23, 2026, the latest composition of the NLRB restored the Wright Line standard.  As such, the current standard requires evidence that the protected activity was a motivating factor in the discipline, and the employer can then rebut this evidence by demonstrating it would have imposed the same discipline regardless of the protected activity.  If the employer’s justification is pretextual, then the NLRB will find a violation.

Why Employers Should Care

Wright Line is once again the governing standard, giving employers more latitude to take action against disruptive employees.  Rather than evaluate whether the employee’s conduct was “too offensive” under a context-specific balancing test, the NLRB will look to the employer’s motive for imposing the discipline: is this discipline that would have been imposed irrespective of the protected activity? If yes, then the employer has a much better chance of defending an unfair labor practice charge.  An employer that consistently enforces its workplace conduct policies is in a far stronger position to defend discipline imposed on an employee whose abusive behavior happened to coincide with protected activity.

What to Do Now

1. Review workplace conduct policies. Ensure your policies clearly define expectations for professional behavior, including prohibitions on threats, intimidation, and abusive language. The return to Wright Lineshould give employers greater confidence that consistently applied standards will hold up.
2. Enforce consistently. Wright Line rewards consistency. If you discipline one employee for profanity directed at a supervisor but look the other way when another does the same, you undermine your own defense. Document every disciplinary action and the business reasons behind it.
3. Train supervisors. Employees still have Section 7 rights, so Wright Line does not give employers a blank check to punish protected activity. It does, however, give employers a clearer path for addressing genuinely abusive conduct.
4. Stay tuned. With additional precedent changes likely from the current NLRB, employers should monitor developments that may affect workplace policies, handbook rules, and labor relations strategies.