Workplace Civility: Single Standard for Imposing Employee Discipline Revived

Employers now have greater flexibility in enforcing neutral workplace conduct rules, provided that discipline based on those rules is not motivated by anti-union animus. The National Labor Relations Board (NLRB or Board) issued its decision in Lion Elastomers LLC, 375 NLRB No. 41 (Lion Elastomers III) on September 23, 2026, concluding that the employer-friendly and burden-shifting framework established in Wright Line, 251 NLRB 1083 (1980) is once again the controlling standard for evaluating employee discipline arising from abusive or offensive behavior during activity protected by Section 7 of the National Labor Relations Act. This decision marks the new Republican-majority Board's first reversal of a union-friendly precedent.

2020 General Motors Decision

For decades, the NLRB evaluated whether employers had lawfully disciplined employees for misconduct occurring during Section 7-protected activity under a patchwork of setting-specific standards that treated the misconduct and protected activity as inseparable. From an employer's perspective, these standards effectively required businesses to tolerate profane, racially charged or sexually harassing speech as long as it occurred in a protected context.

On July 21, 2020, the Board's then-Republican majority issued its landmark decision in General Motors LLC, 369 NLRB No. 127, rejecting setting-specific standards and adopting the Wright Line burden-shifting framework as the one standard for evaluating all cases in which an employee is disciplined for abusive conduct during otherwise protected activity.

NLRB's 2023 Reversal of General Motors and the Fifth Circuit's 2024 Vacatur of that Reversal

On May 1, 2023, a Democratic-majority Board reversed General Motors and restored the prior setting-specific standards in Lion Elastomers LLC, 372 NLRB No. 83 (Lion Elastomers II). The Board reasoned that labor disputes are predictably emotionally charged and that Section 7 rights would be weakened if employers could freely discipline employees for the "ordinary impulsive conduct" that accompanies protected activity.

However, on July 9, 2024, the U.S. Court of Appeals for the Fifth Circuit vacated Lion Elastomers II. The court held that the Board had exceeded the scope of its remand and violated Lion Elastomers' due process rights when it overturned General Motors without giving the company an opportunity to be heard on that issue. The court remanded with instructions to apply General Motors to the facts of that case.

Wright Line Restored by the Board

On remand, the Board's new Republican majority issued the Lion Elastomers III decision on September 23, 2026. The Board concluded that the Fifth Circuit's vacatur of Lion Elastomers II had invalidated the Board's overruling of General Motors.

This outcome was foreshadowed just weeks earlier in General Counsel Memorandum (GC Memo) 26-04, issued by General Counsel Crystal S. Carey on August 26, 2026. In GC Memo 26-04, Carey identified Lion Elastomers II as a precedent she intended to urge the Board to revisit, calling it "problematic" and noting that it "has led to the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the Act."

With General Motors restored as controlling precedent, the Wright Line burden-shifting framework is once again the sole standard for evaluating whether an employer unlawfully disciplined an employee for conduct occurring during Section 7 protected activity. The Wright Line framework operates as follows:

• Step 1 – General Counsel's Prima Facie.  The NLRB general counsel must establish that 1) the employee engaged in Section 7-protected activity (e.g., union organizing, collective bargaining and raising shared workplace concerns), 2) the employer knew of the employee's protected activity and 3) the employer harbored animus toward the Section 7 protected activity.
• Step 2 – Employer's Affirmative Defense. If the general counsel makes the prima facie showing, the burden shifts to the employer to demonstrate that it would have taken the same disciplinary action even in the absence of the employee's Section 7 protected activity. The employer prevails if it proves the discipline was based on the employee's misconduct, not on the protected activity itself. Evidence of inconsistent treatment, selective enforcement or disciplinary language targeting the protected activity itself (rather than the misconduct) can establish that the employer's stated reasons for discipline are pretextual.

Practical Takeaways for Employers

The restoration of the Wright Line framework is a significant development for employers. Key practical implications include the following:

• Greater Latitude to Enforce Workplace Conduct Standards. Employers may discipline employees for abusive, profane, threatening or harassing conduct that occurs during otherwise protected activity, without that discipline automatically being treated as an unfair labor practice. In addition, the Wright Line framework resolves the long-standing tension between Section 7 and federal, state and local anti-discrimination laws by permitting employers to address harassing or discriminatory speech even if it arises in a protected context.
• Document Specific Misconduct. When imposing discipline, employers should carefully document the precise conduct at issue, including the specific language that was used, behavior that was observed and workplace rules that were violated. Discipline should be based squarely on misconduct, not protected activity.
• Apply Neutral Workplace Rules Consistently. Employers should proactively demonstrate that the same rules and consequences apply to all employees, regardless of whether the misconduct occurred during protected activity. Inconsistent enforcement is a primary indicator of pretext.
• Note the Limitations of This Precedent Shift. The majority's reasoning rests on the legal effect of the Fifth Circuit's vacatur rather than an independent policy determination. The possibility remains that the Board will revisit the issue in a future case, especially if its composition changes.
• Expect Further Changes from This Board. Lion Elastomers III is the first precedent shift under President Donald Trump's second-term Board. With NLRB Member James R. Macy's arrival providing a third Republican vote, employers can anticipate changes to a range of other union-friendly precedents established during the Biden Administration. GC Memo 26-04 provides a concrete road map of additional precedents likely to be targeted.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.