NLRB Restores General Motors Standard for Employee Misconduct During Protected Activity

Employers have greater clarity on when they may discipline employees for abusive misconduct that occurs during otherwise protected workplace activity. In a September 23, 2026 decision, the National Labor Relations Board (NLRB) recognized the return of the General Motors framework, which focuses on whether an employer disciplined an employee because of protected activity or would have taken the same action regardless of that activity.

In this context, abusive misconduct means profane, offensive, threatening or harassing conduct that happens while an employee is engaged in protected activity, such as an expletive-filled confrontation with a manager over pay, a vulgar social media post urging coworkers to support a union or racial slurs directed at replacement workers on a picket line. The decision does not change how the NLRB evaluates ordinary workplace misconduct unrelated to protected activity, such as attendance problems or poor performance.

The decision is significant for employers managing employee complaints, union organizing, workplace investigations and anti-harassment obligations. But it does not eliminate employees’ rights under federal labor law or give employers unrestricted authority to discipline employees who raise workplace concerns.

How the Standard Changed

Section 7 of the National Labor Relations Act (NLRA) generally protects employees who act together to address wages, hours and other working conditions, including in nonunion workplaces. Historically, the NLRB evaluated abusive conduct accompanying protected activity using different standards depending on the setting. Under Atlantic Steel, for example, the Board considered the location and subject of an employee’s confrontation with management, the nature of the outburst and whether an unfair labor practice provoked it.

In 2020, General Motors LLC replaced those setting-specific approaches with the Wright Line framework, which examines an employer’s motivation for discipline. In 2023, the Board reversed course in Lion Elastomers II and restored the earlier tests. The U.S. Court of Appeals for the Fifth Circuit vacated that 2023 ruling in 2024, finding that the Board exceeded the scope of the court’s remand and failed to provide the employer an adequate opportunity to address the proposed change in law.

What the NLRB Decided in September 2026

In Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026), the Board treated its vacated 2023 decision as having no continuing effect and sent the case back to an administrative law judge to be decided under General Motors. The practical result for employers is that General Motors is again the standard the NLRB applies to abusive conduct during protected activity.

That result comes with a caveat. The Board did not decide whether General Motors is the better rule, and one member disagreed with treating it as settled for future cases, so the standard could be challenged again in later cases or on appeal.

How the General Motors Framework Works

Under the Wright Line burden-shifting approach, the NLRB’s General Counsel must establish that an employee engaged in protected activity, the employer knew about it and hostility toward that activity was a motivating factor in the adverse action. If that showing is made, the employer may defend its decision by demonstrating that it would have imposed the same discipline even if the employee had not engaged in protected activity.

For example, an employee’s complaint about working conditions may be protected, but that protection does not automatically shield threats, discriminatory harassment or other misconduct accompanying the complaint. Employers must still be able to show that discipline was based on the misconduct itself, supported by evidence and consistent with how comparable incidents have been handled.

Why Employers Should Pay Attention

The decision gives employers a more uniform framework for evaluating misconduct across in-person discussions, online communications and picket-line activity. It also underscores the importance of reconciling NLRA protections with obligations to address unlawful harassment and maintain a safe workplace. However, inconsistent enforcement, comments reflecting hostility toward protected activity or weak documentation can still expose an employer to unfair labor practice allegations.

The ruling also arrives amid a broader review of labor law precedent. In August 2026, NLRB General Counsel Crystal Carey identified decisions she intends to challenge, including rules affecting employee handbooks and remedies. Those policy priorities do not themselves change existing law. Employers should continue to assess handbook language and other labor relations practices under the standards currently applicable to those issues.

Practical Steps for Employers

• Document the conduct promptly. Record the specific statements or actions, relevant witnesses, applicable policies and evidence supporting the decision.
• Separate protected activity from misconduct. Avoid treating the underlying workplace complaint, organizing effort or other protected conduct as the reason for discipline.
• Apply policies consistently. Review how similar conduct has been addressed, including incidents involving employees who were not engaged in protected activity.
• Coordinate investigations and legal review. Train supervisors to recognize protected concerted activity, and seek advice before disciplining employees when protected activity and alleged misconduct overlap.
• Avoid unnecessary handbook changes. General Motors addresses the motivation for discipline; it does not, by itself, rewrite the separate standards governing workplace rules.

The Bottom Line

Lion Elastomers provides employers with a clearer path to addressing abusive workplace conduct, but the critical questions remain why discipline was imposed and whether the employer can prove it would have acted the same way absent protected activity. Careful documentation, consistent enforcement and a fact-specific review remain essential.

KJK’s Labor & Employment team advises employers on workplace investigations, disciplinary decisions, employee policies and matters before the NLRB. For questions about how this decision may affect your organization, contact Maribeth Meluch (MM@kjk.com; 614.427.5747) or another member of our Labor & Employment team.