If an employee is disciplined for violating company policy while the employee was engaged in otherwise protected conduct, how should the Board assess whether the discipline was lawful?
On September 23, 2026, the NLRB, in a precedential decision, clarified the test that it will apply in such situations: the traditional Wright Line test. See Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III). After years of back and forth, this decision provides clarity to employers and hopefully marks the end of the shifting standards that made it difficult to address certain misconduct in the workplace.
The Wright Line Test
The Wright Line test, established in Wright Line, Inc., 251 NLRB 1083 (1980), is the NLRB’s burden-shifting framework for determining whether an employer’s adverse action against an employee was unlawfully motivated by the employee’s union or other protected concerted activity under the Act. The General Counsel must first prove by a preponderance of the evidence that the employee engaged in protected activity, the employer knew of it, and it was a motivating factor in the adverse action. If that prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even absent the protected activity. If the employer’s justification is found to be pretextual, the Board need not consider the same-action defense and will find a violation. The Supreme Court approved the Wright Line framework in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
Relevant History
Given that the Wright Line test has been around for 45+ years, it would seem logical to apply it across a wide array of circumstances. But that has not always been so, as the Board has in a number of cases diverged from the Wright Line test and applied separate tests for certain specific types of misconduct, resulting in a hodgepodge of inconsistent standards.
These included:
1. If the employee misconduct occurred during workplace discussions with management, the Board applied the Atlantic Steel four-factor test, considering: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814 (1979).
2. If it was related to social media posts and/or conversations among employees in the workplace, the Board applied a totality-of-the-circumstances test. Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016).
3. If the misconduct was related to picket-line activities, the Board applied the Clear Pine Mouldings standard to analyze whether, under all the circumstances, the nonstrikers would have reasonably felt coerced or intimidated. Clear Pine Mouldings, 268 NLRB 1044 (1984).
These inconsistencies made it even more difficult for employers to navigate tricky disciplinary situations. And, of course, they led to inconsistencies with how the General Counsel prosecuted cases and the Board determined liability.
The Board’s 2020 General Motors Decision
In 2020, the Board decided to eliminate the application of those inconsistent standards, and to apply the traditional Wright Line test more broadly. See General Motors LLC, 369 NLRB No. 127 (2020). This precedential shift was a breath of fresh air, because it provided more predictability for employers, and also gave employers a bit more latitude to enforce civility and EEO policies.
At the time, Chairman Ring commented: “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace. […] For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
For more information on the General Motors decision, see our 2020 Client Alert.
The Lion Elastomers Saga
Of course, as it goes with the Board, this did not seem to last long. In 2023, the then Democrat-majority NLRB attempted to overturn General Motors by issuing a decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023) (Lion Elastomers II). However, that case was appealed to the Fifth Circuit, which, in 2024, vacated the Board’s Lion Elastomers II decision, and remanded the case back to the Board, again, to apply the General Motors standard (aka the Wright Line test). For more information about Lion Elastomers II, see our 2023 Client Alert.
At this point, you are probably wondering about Lion Elastomers I. Indeed a long-winding saga, the original Lion Elastomers case had been decided by the Board in 2020. The Board applied the Atlantic Steel test, and found that the employer violated the Act. The employer then appealed the decision to the Fifth Circuit.
After issuing its decision in General Motors, the Board asked the Fifth Circuit to remand the case back down, so that the Board could assess the case under General Motors/Wright Line. The court agreed. However, by the time the case had been remanded, the Board had begun flipping to Democrat-majority control.
In 2023, in another precedential decision, the Board decided not to apply General Motors, and instead to reinstate the various other inconsistent standards that had historically applied.
Of course, the employer appealed again, and it went back to the Fifth Circuit for another round. In 2024, the Fifth Circuit overturned the Board’s decision in Lion Elastomers II, finding that it both exceeded the scope of the court’s remand order and violated the employer’s Constitutional due process rights by failing to provide it with the opportunity to address whether General Motors should be overruled.
The case sat for another two years with the NLRB on remand. (The Board lacked a quorum for a year, and then lacked a 3-person majority for another year, and thus did not issue any precedential decisions.)
Now, the Board, with a 3-1 Republican majority, is able to decide significant, precedential issues, including when to apply the Wright Line test.
What This Means for Employers
For most employers, the effects will be subtle. Regardless of the legal test, employers still need to carefully assess and address situations that involve both protected activity and employee misconduct.
In general, it is and remains unlawful to discipline an employee for engaging in protected activity. Meanwhile, Section 7 of the Act encompasses a broad range of rights, including rights to engage in certain protected speech. For example, just a week prior, the Board found that a tech company unlawfully fired a software engineer who had openly criticized certain workplace policies. For more information on that case, see our Blog Post.
It can become even more complicated when an employee uses profanity or racial epithets during an aggressive tirade. For example, what if an employee complains about a female supervisor on social media, and calls her the b-word or c-word in the process? On the one hand, the speech may be protected under the Act. On the other hand, this would clearly violate an employer’s EEO policy.
While every situation is unique, the Wright Line test gives employers a bit more cover to take action. If, putting aside the protected aspect of the activity, the employer can prove that it would have taken the disciplinary action anyway, then it has a better chance of combating an unfair labor practice charge.
Given the complicated procedural history here, there could be other legal nuances at play. Stay tuned, as our labor team will do a deeper dive on this latest decision, and will update this blog post to include a link to our Client Alert that will have more analysis and examples of what employers can expect moving forward.
This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship.