NLRB Ruling Gives Employers More Discipline Latitude Over Worker Outbursts

A long-running NLRB case clarifies when employers can discipline workers for abusive conduct during protected activity.

HR Solution Journal News Desk

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HR leaders navigating employee misconduct during union or group activity have new, if tentative, guidance. In the Lion Elastomers case, the NLRB is now applying a burden-shifting standard, originally established in General Motors, after a federal appeals court rejected the board's attempt to revert to an older context-specific test. Under the current standard, the NLRB's general counsel must first show an employer acted with animus toward protected concerted activity. Employers can then avoid liability by proving the discipline would have occurred regardless. Attorneys note this gives employers more room to address abusive conduct, but the NLRB has signaled it may revisit the standard in a future case.

Source: HR Daily Advisor. Original announcement: October 22, 2026.