NLRB Advice Memo Clears Employer In Political Protest Firings And Signals Future Action

Key Takeaways

• The NLRB’s Division of Advice found no NLRA violation in a company’s firing of two employees who organized a political protest on company property, concluding the protest lacked a sufficient link to protected concerted activity for “mutual aid or protection.”
• In a footnote, General Counsel Crystal Carey signaled she will urge the NLRB to overturn a 2024 NLRB decision protecting activity with “an objective” the NLRA protects, “even when other objectives may predominate.”
• Employers have greater leeway to discipline employees for political protests that violate company policy, but should keep a clear, contemporaneous record of the activity’s purpose, watch for any claimed workplace connection, and expect this position could shift with a new administration, NLRB, or general counsel.

The National Labor Relations Board (NLRB or Board) has cleared an employer of unfair labor practice charges over its firing of two employees who organized a political protest at the company’s headquarters. In a recently released advice memo, an attorney in the NLRB’s Division of Advice found no violation of the National Labor Relations Act (NLRA) and directed the agency’s regional office not to prosecute.

The memo is a win for the company, and it offers employers a useful window into how the Board’s general counsel is currently drawing the line between political protest and protected concerted activity. In addition, a footnote in the memo notes the general counsel’s view that the doctrine behind this result is not settled — and that the general counsel intends to solidify this finding in case law.

What Happened in the NLRB Political Protest Firing Case?

According to the advice memo, an employee had been “…posting on the company’s internal communications platform about ‘the war in Gaza’ since 2023.” Per the Division of Advice, the vast majority of those communications made no reference to workplace concerns. In May 2024, two employees launched a campaign, coordinated with an outside activist group, “…urging the company to ‘terminate its Azure contracts with the Israeli government.’”

Later that year, two workers invited colleagues to a protest at the company’s headquarters “…timed to coincide with an ‘international day of action organized by No Tech for Apartheid,’” the memo explains. The invitation linked to a “digital toolkit” containing the May 2024 petition, but the advice memo found that the invitation” did not otherwise indicate that the event’s purpose was to address workplace concerns.” At the protest, security told the organizers to move the protest off company property. They declined to do so and held the protest on company property anyway. The company fired the two employees.

Is Political Protest Protected Concerted Activity Under the NLRA?

The NLRA protects concerted activity aimed at “mutual aid or protection” — conduct through which employees seek to improve their own terms and conditions of employment. The Division of Advice found the protest’s connection to that standard too thin, writing “an indirect link to the months-old petition… is insufficient to establish that ‘an objective’ of the protest itself was to improve employees’ lot as employees.”

The Division also rejected a fallback theory that the employer’s “relationship with Israel could harm public perception and thus the company’s financial performance, thereby affecting employees’ compensation and benefits,” calling that link “too attenuated.” That analysis relied upon the Supreme Court’s 1978 decision in Eastex v. NLRB, which recognized that the relationship between a workplace action and employees’ own interests can become so remote that the NLRA’s protection no longer reaches the employees’ conduct.

Will the NLRB Overturn Prior Precedent? What the General Counsel’s Footnote Signals

In addition to resolving the specific case at hand, the advice memo signaled future action. The memo cited a prior decision of the Board’s from February 2024 decision in which it held that a workplace Black Lives Matter display was protected because it carried “an objective” the Act protects, “even when other objectives may predominate.” In a footnote, the Division of Advice stated that General Counsel Crystal Carey disagrees with the holding in this precedent and “will urge the board to overturn it in an appropriate case.”

While the prior ruling and its standard remain good law today, this is a clear signal that the general counsel intends to seek its reversal.

Can Employers Discipline Employees for Political Protests?

The takeaway is NOT that all political protest is unprotected now. Such reasoning goes too far the “other way.” Instead, the case highlights that the current general counsel intends to more strictly require that when employees engage in political protests, that activity must “seek to improve terms and conditions of employment or otherwise improve their lot as employees.” If other objectives predominate, employers have more leeway to take disciplinary action against employees who organize or participate in political protests that otherwise violate company policies, such as here, where employees held the protest on company property against company policy. Of course, there may be other laws in play relating to First Amendment rights and other constitutional protections generally, but those do not preclude a private employer from taking disciplinary action.

Employers responding to workplace activism and political protests should document any investigation into the stated purpose of the activity before making any employment decision and keep that decision tethered to the conduct violating policy. Employers also should be cautious if the protests proclaim some workplace connection, as predicting what a future Board may consider “attenuated” or sufficiently connected can be challenging. Discipline decisions should be based on a clear, contemporaneous record of what the activity was actually about — because that record is exactly what the Division of Advice relied on here.

A word of caution, though (as hinted at above): this position by the general counsel is one that will be easily changed with any new administration, new Board, and new general counsel. Prosecutorial discretion on what to pursue or not pursue is quite dependent on the sentiments of the administration, especially in this area. Employers are also wise to consider state laws related to such matters. This memo resolves one case, not the underlying doctrine. Employers relying on this outcome as a template should treat it as a snapshot of where the general counsel’s position stands today and potentially Board precedent down the road, but not as a fixed rule for tomorrow — and certainly not as one that could change if the next presidential election results in a change of the political party in power.

But until then, employers now have greater leeway in addressing political protests or other workplace activism that violate company policies.