In a National Labor Relations Board (NLRB) Division of Advice memorandum recently released to the public, although in redacted form, the Division of Advice said that one of the world’s largest software companies did not violate the law by firing two employees who organized a protest of the war in Gaza at the company’s headquarters. According to the Advice Memo, the protest lacked a clear tie to terms and conditions of employment, and, therefore, the Seattle Regional Office was directed not to issue a complaint.
There, the charging party-employees had regularly emailed leadership and posted on the Company’s internal communications platform about the war in Gaza. The employees also launched a campaign and petition demanding that the Company cease a cloud computing platform contract that had apparent ties to the Israeli government, citing the safety of “Palestinian, Arab and Muslim and allied employees.” The employees also urged a walkout on the Company’s premises to oppose “Israel’s apartheid and genocide.” Despite repeated requests to move the event offsite per Company security policies, the employees moved forward with the protest. As a result, the Company terminated the employee organizers for violating Company security directives.
According to the Advice Memo, the termination of the employees did not violate federal labor law because the event was not “for mutual aid or protection.” Specifically, the Division of Advice explained that the protest’s objectives were to pressure the employer to cut ties with the Israeli government, raise awareness of conditions in Gaza and raise humanitarian relief. The objective of the protest was not to improve employees’ working conditions, which is a necessary tie for the activity to be considered protected under the National Labor Relations Act (Act).
The Division of Advice also deemed too attenuated the charging party’s argument that the protest was protected because the Company’s relationship with Israel could harm public perception and thus, the Company’s financial performance, thereby affecting employees’ compensation and benefits. It also pointed out that efforts to affect the ultimate direction and managerial policies of the business or influence a product fall outside the scope of protected activity, even if such efforts might also have an ancillary effect on a company’s finances.
Key Takeaway for Employers
This Advice Memo is a reminder that concerted activity must have a tie to working conditions in order to be protected under the Act. While employees may advocate for causes they deem worthy, such advocacy and speech in the workplace may be unprotected if the issues do not relate to improving their lot as employees.
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