As workplace tensions rise amid political divisions, economic uncertainty, and other pressures, employees may be more likely to speak their minds, sometimes crossing the line when addressing supervisors. But when does talking back to the boss become grounds for discipline or termination, and when is that behavior protected under federal labor law? The National Labor Relations Board (NLRB) has wrestled with this question for decades, with its decisions shifting over time on how much leeway employees have when engaging in protected workplace activities.

In 1980, the National Labor Relations Board established an important precedent in the Wright Line case, creating a two-step test to determine whether an employer disciplined or terminated an employee for union activity or other legally protected conduct. The test applies to situations where an employer may have both legitimate and unlawful reasons for taking disciplinary action. First, the NLRB must demonstrate that the employee’s protected activity was a motivating factor in the employer’s decision. If established, the employer must then prove it would have taken the same action regardless of the protected activity. For example, if an employer fires a union supporter for violating a dress code but has never enforced that policy against other employees, the inconsistent enforcement could indicate that the stated reason was simply a pretext for unlawful retaliation. In that case, the termination could violate the National Labor Relations Act (NLRA). The U.S. Supreme Court upheld this framework in 1983.

However, under the Obama Board, it extended these protections though the Plaza Auto Center, Pier Sixty, and Cooper Tire cases, which collectively held that racist remarks and extreme profanity were protected under Section 7 in some situations. 

The Obama Board also expanded the 1979 Atlantic Steel case. In this case the Board overturned the dismissal of an employee who called his supervisor a “lying s.o.b.” while discussing a grievance and established a four-part test to evaluate “(1) the place of the discussion; (2) the subject matter; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice” when determining Section 7 protection. In this case the Board found that the outburst in the circumstances of prosecuting a grievance was protected speech, regardless of its profanity.

In 2020 the Trump NLRB reversed the Obama Board decisions in the General Motors LLC case. The employee in this case used profanity and offensive language during a union discussion. The Board reaffirmed the Wright Line approach to employee discipline and termination, once again giving employers the ability to terminate employees when they cross the line. 

However, in May 2023, the Biden-era NLRB reversed the General Motors decision in its ruling on Lion Elastomers. The case involved an employee, Joseph Colone, who was threatened with termination during a grievance meeting in 2016 when a production manager pointed his finger at him and said, “You ain’t gonna make it.” The Board returned to three setting-specific standards for evaluating whether an employee’s misconduct during protected activity was serious enough to justify discipline without violating the NLRA. This decision gave employees greater protection for certain offensive or confrontational behavior occurring during protected activities. However, in 2024, the U.S. Fifth Circuit Court of Appeals rejected the Board’s attempt to overturn General Motors, stating:

"The court held that the board exceeded its authority by attempting to use this case to overrule General Motors," the majority said. "It necessarily follows that the board's attempt to overrule General Motors in Lion Elastomers II was invalidated by the court's decision and did not survive judicial vacatur."

Following the Fifth Circuit’s ruling in the Lion Elastomers LLC case, the NLRB returned to the Wright Line test to evaluate whether employers unlawfully disciplined employees for misconduct occurring during protected activities. This approach provides a more consistent framework for determining when employers can appropriately discipline employees for unacceptable workplace behavior without violating the NLRA.

The key takeaway for HR professionals is that consistency in disciplinary practices matters, whether an organization is unionized or not. Disciplining or terminating an employee for conduct that has gone unpunished in similar situations can expose an employer to unfair labor practice charges. To reduce this risk, HR should maintain a disciplinary log documenting the date, reason, action taken, outcome, and manager involved. Employers should also train managers on appropriate disciplinary and termination procedures to ensure policies are applied fairly and consistently across the organization.

Sources: Proskauer 9/29/26, Law360 9/23/26, Fedlaws.org 9/20/26, US Chamber of Commerce 7/21/20