5TH CIR.Regulation
NLRB restores General Motors test limiting protection for abusive workplace speech
The National Labor Relations Board ruled on September 23, 2026 in Lion Elastomers that the employer-friendly General Motors standard again governs when workers may be disciplined for profane or discriminatory speech during workplace disputes, Reuters reported on September 24. A 3-1 Republican majority said a Fifth Circuit vacatur left General Motors intact; Democratic Member Prouty dissented.
Key points
- The NLRB held the 2020 General Motors abusive-conduct test is again good law.Reuters
- The 3-1 decision in Lion Elastomers followed a Fifth Circuit vacatur of the 2023 overruling.Reuters
- Under General Motors, boards ask if the employer would discipline similar non-dispute speech.Reuters
- Member Prouty dissented, saying the majority sidestepped reasoned rulemaking via one circuit ruling.Reuters