On September 23, 2026, the National Labor Relations Board (NLRB or Board) delivered welcome news to employers when it clarified the controlling framework for deciding whether an employee’s abusive conduct loses the protection of the National Labor Relations Act (NLRA). Specifically, in Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III), the NLRB, on remand from the United States Court of Appeals for the Fifth Circuit, held that the Wright Line burden-shifting test it applied in its 2020 General Motors decision “constitutes extant Board precedent” for deciding whether an employee’s misconduct arose in the course of otherwise protected activity was so egregious or abusive to lose the protection of the NLRA. In reestablishing this burden-shifting framework, the Board effectively tossed aside the more employee-friendly, setting-specific standard reintroduced by the Board in 2023 in Lion Elastomers II.
As we previously discussed here, Lion Elastomers II was a culmination of… Read the complete article here...
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