Sept. 23’s Lion Elastomers III ruling restored the Wright Line burden-shifting test as the NLRB’s controlling standard for employee misconduct during otherwise protected labor activity.
The board said the Fifth Circuit’s 2024 decision vacating Lion Elastomers II effectively revived its 2020 General Motors precedent and left no basis for the employee-friendlier setting-specific test.
Under Wright Line, the NLRB’s general counsel must show protected activity was a motivating factor, while employers can avoid liability by proving they would have imposed the same discipline anyway.
That framework is generally more favorable to employers than the standard revived in 2023, which often protected heated, profane or insubordinate conduct if it occurred during Section 7 activity.
The board stressed it was not newly overruling precedent, and said a future case could still revisit whether General Motors should remain the governing rule.
Why does restoring Wright Line in Lion Elastomers III matter for employers, unions, and workers raising safety or workplace complaints?
If protected activity turns confrontational, how can employers prove discipline was for misconduct rather than retaliation under the NLRB’s revived standard?