If you manage people, this alert is for you. As anticipated, the National Labor Relations Board (NLRB or the Board) has taken steps toward significant changes under its new leadership – changes that could directly impact how employers handle employee discipline and workplace policies. This piece covers what happened, what it means for you, and what you should do about it.
A New Direction at the NLRB
The NLRB is a federal agency that enforces workers' rights to organize and engage in protected, concerted activity. It also polices employer conduct during union campaigns and workplace disputes. Two key players largely shape the agency's direction: the (up to) five-member Board that decides cases, and the General Counsel, a Senate-confirmed official who generally controls which cases the agency prosecutes and advises the Board regarding priorities.
On August 26, 2026, General Counsel Crystal Carey issued Memorandum GC 26-04, publicly identifying a long list of Biden-era Board decisions she suggests the Board overturn. These include rules governing severance agreements, employee handbook policies, captive audience meetings, dress codes, bargaining obligations, union dues, expanded remedies, and protections for certain types of employee conduct. The agency has also cleared a massive backlog – resolving over 9,247 pending cases, a reduction of more than 50 percent – and GC Carey has deliberately moved away from the prior administration's practice of routing priority cases through a centralized review process in Washington, D.C.
Critically, the Senate recently confirmed James Macy as the Board's third Republican member, giving the Board a solid 3-1 Republican majority. That majority will hold through at least late 2027. With the agency having cleared its backlog and Republicans holding a majority, the stage is set for rapid changes. It is likely that the Board will overturn many of the more "labor-friendly" precedents developed during the Biden years.
Employee Outbursts: A Major Win for Employers
The Board is not just signaling future changes – it has already acted. On September 23, 2026, the NLRB issued its decision in Lion Elastomers LLC (375 NLRB No. 41), effectively reinstating a more "employer-friendly" standard for handling employee outbursts that occur during union or other protected activity.
Here is what changed:
The old rule (Biden era). Under a now defunct standard, set in 2023, the Board used three different tests to evaluate whether an employee's offensive or abusive behavior during protected activity crossed the line. One test applied to confrontations with management, another to picket-line conduct, and a third to social media posts and conversations among employees. These tests were exceptionally protective of employee behavior and made it harder for employers to discipline workers for outbursts – even when that conduct was profane, abusive, or objectively offensive – so long as the outburst was part of a protected activity.
The new rule. The Board has reinstated the Wright Line framework. Under this standard, the question is straightforward: Was the employer's decision to discipline the employee motivated by hostility toward the employee's protected activity? If the employer can show it would have taken the same action regardless of the protected activity, the discipline is lawful.
What this means: Employers now have significantly more latitude to discipline employees for abusive, threatening, or offensive conduct that occurs during otherwise protected activity. The single-test approach is much more favorable to employers than the context-specific tests it replaced. Notably, the decision also resolves a longstanding tension between labor law protections for certain offensive speech and employer obligations under anti-discrimination and harassment laws.
Practical Takeaways
These developments call for practical, measured steps – not a wholesale overhaul of your policies overnight. Here is what we recommend:
- Review Discipline Policies and Handbooks. The Lion Elastomers decision is already in effect. If your organization has been hesitant to discipline employees for misconduct during protected activity, this is a good time to revisit your approach with your legal counsel.
- Delay Other Changes. While the legal landscape is shifting in employers' favor, most of the Biden-era precedents identified in Memo GC 26-04 remain technically in effect until the Board formally overrules them. Acting prematurely could still expose your organization to unfair labor practice charges.
- Flag policies revised for Biden-era compliance. If your organization updated severance agreements, handbook provisions, or dress code policies specifically to comply with Biden-era Board decisions, earmark those for a fresh review. Changes are on the horizon.
- Always document misconduct thoroughly and consistently. Regardless of whether employee misconduct occurs during protected activity, thorough documentation remains your best defense. Consistent documentation helps demonstrate legitimate, nondiscriminatory reasons for disciplinary action. Impress upon all managers the importance of documentation.
Questions? Let's Talk.
The labor law landscape is changing quickly, and staying ahead of these shifts is critical. If you have questions about how these developments affect your organization – or if you want to discuss whether you should adjust your current policies and practices – we encourage you to reach out to us. Our Labor & Employment Group works with organizations of all sizes to navigate exactly these kinds of changes, and we are always happy to talk through what these developments mean for your specific situation.