In 2023, the National Labor Relations Board issued a decision that called into question employers' ability to discipline or discharge employees who engage in profane or disruptive conduct in the workplace when expressing dissatisfaction over terms and conditions of employment. Last week, the NLRB overturned this Lion Elastomers precedent, reverting to an earlier test that requires aggrieved employees to prove that the employer took the adverse action in response to the employee’s protected activity.

Last month, President Trump’s appointees assumed a supermajority of NLRB seats. That new majority returned this determination to a standard established during the first Trump administration, which focuses less on a review of how offensive the conduct was in that given context. The NLRB justified its position using a Fifth Circuit Court of Appeals decision that rejected the test used in the Lion Elastomers precedent. For employers, this decision means that it will be more difficult for employees to contest terminations based on disruptive conduct when the employer can demonstrate consistent application of its workplace rules.

More importantly, this case represents the first of a likely series of NLRB decisions that overturn pro-employee and pro-union cases from the Biden era. Over the past decade, the NLRB has demonstrated a consistent pattern of reversing decisions made by prior board majorities controlled by the opposing political party. This flip flopping has led employers to take NLRB precedents with a grain of salt, knowing that a change in presidential politics is likely to result in a corresponding change to interpretations of employee rights under federal labor laws.

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