HR Alert: NLRB Revives General Motors Standard for Abusive Conduct During Protected Activity

An employee can be upset, blunt, or even swear while raising a workplace concern and still have legal protection. A new NLRB decision is a good reminder that employers shouldn’t discipline someone for the complaint itself just because the conversation got heated.

Here’s the simple version: when an employee speaks up about pay, scheduling, safety, staffing, benefits, or another workplace issue that affects coworkers, federal labor law may protect that conversation. That can be true even in a non-union workplace.

Employees don’t get to threaten people, harass coworkers, or do whatever they want. But if an employee is disciplined after raising a group workplace concern, your company may need to show that it would’ve made the same decision if the employee hadn’t raised the concern at all.

That’s why a quick “they were disrespectful, so fire them” reaction can cause trouble.

What Changed?

On September 23, 2026, the National Labor Relations Board issued a decision in Lion Elastomers LLC, 375 NLRB No. 41. The case involves an employee who raised union and workplace concerns, including at a safety meeting.

The Board didn’t decide the employee’s final claim in this decision. Instead, it sent the case back to an administrative law judge to apply a workplace-discipline test from an earlier NLRB case, General Motors LLC.

For employers, the important part is what that test asks: Did the company discipline the employee because of protected workplace activity, or would it have imposed the same discipline anyway because of the employee’s conduct?

That distinction isn’t just legal jargon. It’s the heart of the problem.

Why This Matters Even If You Don’t Have a Union

Many owners assume the National Labor Relations Act applies only to union shops.

It doesn’t.

In many private-sector workplaces, employees may be legally protected when they talk with coworkers, or try to act with coworkers, about workplace issues like pay, hours, staffing, safety, or benefits. One employee may also be protected when speaking for coworkers or trying to get coworkers involved.

That doesn’t mean every complaint is protected. It also doesn’t mean every employee is covered. Supervisors, independent contractors, public employees, and some other workers are treated differently. But it does mean that a non-union employer should pause before disciplining an employee who has just raised a concern shared by others.

A Real-World Example

Let’s say an employee says at a staff meeting: “We’re short-staffed again, people are getting hurt, and no one is listening.” The employee swears while making the point. Two coworkers had complained about the same staffing issue earlier that week.

The employee’s tone may be unacceptable. Your company may have a legitimate rule about professional conduct. But don’t stop there.

Before deciding on discipline, ask:

• Was the employee raising a concern about working conditions that affected other employees?
• Was the employee speaking for coworkers, or trying to get coworkers involved?
• Is there a real, consistently enforced rule the employee violated?
• Have we disciplined other employees the same way for similar language when no workplace complaint was involved?
• Can we honestly show that we’d make the same decision if the employee hadn’t complained about staffing or safety?

If the answer to that last question is shaky, don’t rush the discipline decision.

What Employers Should Do

1. Slow down. If an employee has just raised a group workplace issue, don’t let an immediate reaction drive the decision.
2. Write down what actually happened. Don’t settle for “bad attitude” or “disrespect.” Identify the exact words or conduct at issue, who saw it, what company rule may apply, and why the behavior mattered.
3. Look at past practice. Did you discipline other employees for the same conduct? If you’ve ignored similar language in the past, it’s harder to defend a harsher response now.
4. Don’t punish the message because you dislike the delivery. You can address conduct that violates a legitimate policy. You can’t use that policy as cover for punishing an employee for raising a protected workplace concern.
5. Get help before you act. This is a good time for HR or employment counsel to review the facts, especially when termination, suspension, or a final written warning is on the table.

What About New York Law?

For New York private employers, this is mainly a federal labor law issue. New York doesn’t have a direct private-sector law that gives employees the same broad protection for group workplace complaints.

But New York law can add other layers. An employee may separately be protected from retaliation for complaining about discrimination or harassment under the New York State Human Rights Law. New York law also protects certain legal off-duty activity. And public-sector employers follow different labor rules under New York’s Taylor Law.

The practical lesson is simple: don’t treat this as a one-question issue. Before disciplining an employee who has complained about workplace conditions, make sure you understand all the reasons the employee could claim protection.

The Bottom Line

You don’t have to tolerate threats, harassment, or serious misconduct. But don’t let frustration with an employee’s delivery blind you to what the employee was saying.

When someone raises a group concern about the workplace, take a breath, gather the facts, and make sure your response is based on conduct you consistently discipline, not the complaint itself. That’s good management, and it gives your business a much better legal position.

The Coppola Firm helps New York employers make sound workplace decisions before they become costly problems.

If you have questions, please call 716.839.9700 or email info@coppolalegal.com.