NLRB Reins In Protections for Workplace Outbursts
On September 23, 2026, the National Labor Relations Board (“NLRB”) issued a decision changing the legal standard to be used in situations involving employee outbursts in the workplace. For years – since 1979 – the NLRB’s rule in this area was governed by a case called Atlantic Steel that established four factors that a judge must apply after an employee was disciplined or fired following an outburst in the workplace. The NLRB has now returned to a burden-shifting framework that would require the NLRB to show that the employer was motivated by the employee’s protected conduct in issuing discipline and would give the employer the chance to rebut this evidence by showing that the employee would have been disciplined regardless of the protected activity.
Atlantic Steel
The Atlantic Steel doctrine was a vehicle for many NLRB decisions reinstating employees to their jobs after they had committed an infraction that would have gotten any other employee fired. The factors were these: (1) the place the outburst occurred, (2) the subject matter of the discussion, (3) the severity of the outburst, and (4) whether the employer’s own unfair labor practices provoked the outburst. While all the factors were considered, the third –severity—was the focal point in most cases. An employer with a legitimate workplace conduct rule and a track record of firing employees for similar outbursts was out of luck: under Atlantic Steel, that was not a consideration.
One (perhaps notorious) example was Plaza Auto Center, a decision where the NLRB found that an employee was unlawfully fired. In that case, an employee raised a wage complaint with his coworkers, some of whom were in agreement with him (protected activity under federal labor law). The employee raised the issue at a meeting held by the company’s owner (also protected). However, the employee went on to unleash a barrage of foul language directed at the owner, told him that nobody respected or liked him, then said that if the owner fired him, he would “regret it.” The NLRB found that the outburst was not serious enough under Atlantic Steel for the employee to lose protection under the National Labor Relations Act (“NLRA”). With regard to what the employer said was a veiled threat, the NLRB concluded that the employee was “threatening” to file a charge with the NLRB challenging his termination. The decision is an interesting read, to be sure.
The NLRB Reverses Atlantic Steel, then Reinstates it Three Years Later
In 2020, the NLRB in General Motors reversed Atlantic Steel. Under the new standard, the NLRB had the burden of showing that the employee’s protected conduct was a “motivating factor” in the employer’s decision to discipline the employee. If the government made that showing, the employer was given a chance to rebut it by proving that it would have issued the discipline regardless of the employee’s protected activity. If this rule sounds familiar, it is: it’s the standard set forth in Wright Line, an NLRB from the 1960s that applies in any case involving alleged retaliation against an employee for union-related activities. To many employers, General Motors represented a more workable rule that allowed an employer to maintain work rules governing decorum.
The NLRB reversed General Motors in 2023, reinstating the Atlantic Steel test in a case called Lion Elastomers. The Fifth Circuit Court of Appeals in a 2024 decision refused to enforce Lion Elastomers, but on procedural grounds rather than concluding that the NLRB had exceeded its authority in reversing General Motors. The court then remanded the case to the NLRB.
The NLRB Reinstates General Motors
The NLRB majority was careful to state that it was not overruling Lion Elastomers, but recognizing, and agreeing with, the Fifth Circuit’s conclusion that Lion Elastomers should not have been issued and that the case is now back before the NLRB on the merits. This decision has effectively vacated Lion Elastomers, which means that the General Motors rule now applies to all employers subject to the NLRB’s jurisdiction. Board Member David Prouty dissented, on the ground that the NLRB has historically applied its rulings regardless of the views of the federal courts of appeal. The NLRB will later issue a decision on the merits of the case, but for now, General Motors is the law of the land.
What does this mean for your business? The Atlantic Steel four-factor test no longer applies. Faced with an employee outburst, or inappropriate posts on social media, an employer may rely on its legitimate work rules, as well as a practice of uniformly (and non-discriminatorily) applying those rules regardless of whether an employee has engaged in activity protected by the NLRA. Employers should be on the lookout for a new standard governing workplace outbursts that presumably will be included in a new Lion Elastomers decision.
We will continue to monitor the case and will report on any notable updates.
