NLRB Reinstates Employer-Friendly Framework To Analyze Employee Offensive Conduct

On September 23, 2026, the National Labor Relations Board (NLRB or Board) reinstated the employer-friendly General Motors standard to analyze when an employee’s offensive conduct loses protection under the National Labor Relations Act (Act). This decision reached the Board via the U.S. Court of Appeals for the Fifth Circuit, which vacated and remanded the Board’s Biden-era decision in Lion Elastomers that overturned the Board’s previous Trump-era General Motors decision.

In Lion Elastomers, the Board reestablished three context-specific tests to determine when an employee’s offensive language or conduct lost protection under the Act, depending on whether the employee conduct involved: (1) interaction with management; (2) interactions on the picket line; or (3) employee social media posts.

However, in General Motors, the Board recognized numerous issues with these context-specific tests. For example, when interacting with management, the Board’s focus on evaluating the subject matter of the discussion always favored the employee because the test only applied when the discussion related to protected activity. Additionally, these tests exempted abhorrent conduct—including the use of racially and sexually offensive language—from disciplinary consequences.

Now, the Board will once again apply the General Motors test in all circumstances when determining whether an employee’s offensive conduct is protected under the Act. Under General Motors, the Board applies a burden-shifting framework, and the General Counsel must first make an initial showing that: (1) the employee engaged in protected activity; (2) the employer knew of that activity; and (3) the employer had animus against the protected activity. To meet this burden, the General Counsel must present evidence to establish a causal relationship between employer-imposed discipline and the protected activity. If the General Counsel meets this burden, the employer must prove it would have taken the same action absent the employee’s protected activity. The employer will fail to meet this burden if its purported reason for the discipline is pretextual, meaning false or not the actual basis for the decision.

The Board’s reinstatement of the General Motors framework will result in more predictable and equitable results in cases involving employee outbursts or other inappropriate misconduct, as the analysis will focus primarily on the employer’s motive. Employers disciplining workers for inappropriate language or conduct should be prepared to defend their decision with evidence that it would have disciplined the employee regardless of whether the employee was engaged in allegedly protected activity.