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Protected Workplace Misconduct: Navigating Setting-Specific Standards While Preventing Discrimination

Lion Elastomers’ Impact on Union and Non-Union Employers

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, August 2, 2023

Recorded event now available

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This CLE webinar will focus on the NLRB's decision reviving setting-specific standards to be considered before disciplining employees for misconduct. The panel will discuss best practices for applying the standards and advise on how to avoid an unfair labor practice (ULP) while preventing discrimination in the workplace.


On May 1, 2023, the NLRB revived setting-specific standards requiring union and non-union employers to consider the context of employee misconduct before taking disciplinary action. Employers must once again consider three indefinite standards to determine whether they may take an adverse employment action against an employee whose misconduct may be considered protected concerted activity.

It is now more difficult for employers to discipline workers for profane, racist, sexist, or other types of offensive workplace conduct without risking a ULP charge. Employers face a dilemma as to whether to commit a ULP or to allow behavior that creates a discriminatory work environment and subjecting the employer to significant liability under federal, state, and local employment laws.

Listen as our expert panel discusses the setting-specific standards and best practices for their application and advises on navigating conflicting obligations under the NLRA while preventing discriminatory workplace conduct.



  1. Summary of history of NLRB decisions leading to Lion Elastomers II
  2. The three setting-specific standards to determine whether misconduct may be considered protected activity and best practices for employer application of the standards
    1. Outbursts to management in the workplace (Atlantic Steel test)
    2. Social media posts (totality of the circumstances test)
    3. Abusive picket line conduct (Clear Pine Mouldings standard)
  3. Assisting clients in navigating conflicting obligations between NLRA compliance and preventing discrimination claims


The panel will review these and other noteworthy issues:

  • What are the three setting-specific standards revived by the NLRB that should be considered by union and non-union employers before disciplining employees for workplace misconduct?
  • How to apply the standards to determine whether workplace misconduct may be considered protected concerted activity
  • How to apply the standards when an employee commits multiple acts of misconduct under varying circumstances
  • How to assist employers in navigating conflicting obligations under the NLRA while also preventing discrimination and harassment in the workplace


Bolesta, John
John S. Bolesta

Special Counsel
Sheppard Mullin

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients...  |  Read More

Lawless, Laura
Laura Lawless

Squire Patton Boggs

Ms. Lawless is a trial lawyer who represents employers before federal and state courts and administrative agencies, as...  |  Read More

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