Lies, Wages And The NLRA: How Employee Dishonesty Can Still Be Protected

As the newly reconstituted National Labor Relations Board (NLRB or the Board) begins clearing its backlog of cases, employers are watching closely to see how far it may go in reshaping long‑standing Board precedent. One issue drawing renewed attention is whether an employer may lawfully terminate an employee who lies during a workplace investigation, particularly when the underlying subject matter involves protected activity. A recent case demonstrates that the answer is more complicated than many employers might expect.

Inherently Concerted Activity Under the NLRA

Section 7 of the National Labor Relations Act (NLRA or the Act) protects employees' right to engage in "concerted activity" for the purpose of improving working conditions for a group of employees. These rights apply equally in union and nonunion workplaces. Wage discussions, benefits, hours and safety issues have long been treated as core protected categories.

Biden-era Board decisions further expanded the scope of protected conduct. In Miller Plastic Products, the Board stated even solo protests may qualify as protected if they can reasonably be viewed as an attempt to spur group action. In Lion Elastomers II, the Board held that even profane or offensive remarks may remain protected if made during the course of Section 7 activity. Under this approach, conduct is evaluated in the context of the protected activity itself, not as an isolated workplace incident.

Motorola and Inherently Concerted Activity

The Motorola Solutions Inc.case highlights an important concept adopted by the NLRB: the "inherently concerted activity." Under this doctrine, certain subjects – especially wages – are treated as concerted by their very nature. An employee need not act with co-workers, attempt to spark group action or participate in a broader workplace dispute for Section 7 protections to apply. The topic alone can trigger NLRA coverage.

In this case, Motorola employee Elisa Sheley stated to her co-workers that she thought a certain co-worker, Robert Rivera, was overpaid. After Rivera complained to management, the company questioned Sheley about the wage discussions. Sheley denied having talked about Rivera's pay, an answer that was a lie. Motorola terminated her for dishonesty under a neutral workplace policy governing internal investigations. However, the NLRB administrative law judge concluded that because the underlying conversations involved wages, an inherently concerted topic, Sheley's denial remained closely connected to protected activity. As a result, the judge found that Motorola could not lawfully rely on the dishonesty policy to justify her termination.

The case is now on appeal before the Board. While the newly constituted Board may approach some issues more favorably for employers, wage‑related conversations continue to receive some of the strongest protections under the NLRA, especially when analyzed through the lens of inherently concerted activity.

A More Employer-Friendly Enforcement Approach? The New GC's Guidance

As to how the Board will address allegations such as those raised in Motorola, the newly appointed NLRB general counsel (GC), Crysal Carey, has issued guidance that signals a shift away from the more aggressive enforcement posture of prior years.

• The GC discourages the routine use of enhanced remedies such as notice readings, apology letters and nationwide postings.
• Investigators are directed to require charging parties to present evidence within two weeks of filing a charge.
• Regional offices should request information from employers only when the charging party's evidence suggests a potential violation.
• The memo limits the practice of requesting entire employee handbooks when only a single rule is at issue.
• The use of Section 10(j) injunctions – extraordinary remedies – is restricted to truly exceptional cases.

What Does This Mean for Employers?

Until the Board resolves the issues raised in Motorola, employers should remain cautious when navigating discipline connected to discussions of wages or workplace conditions.

• The NLRA continues to protect a broad range of employee conduct, particularly comments related to wages and health and safety.
• These protections apply equally in nonunion and union workplaces, meaning nonunion employers face the same risks under the Act.
• The Board considers its existing decisions binding on employers until expressly overturned, even under a more employer‑friendly Board.
• Because topics like wages and safety are considered inherently concerted, employers must exercise heightened caution when considering discipline, even for dishonesty or inappropriate conduct, if the behavior is tied to those subjects.
• Employers should carefully review workplace investigation protocols, handbooks and disciplinary policies to ensure enforcement does not inadvertently interfere with Section 7 rights.
• On the positive side, if someone files a charge against an employer, the Board's handling of the charge may be less adversarial than it has been previously.

For employers navigating these complexities, seeking guidance is strongly advisable. BakerHostetler's Labor and Employment Practice Group is available to assist with NLRA compliance, internal investigation strategies and understanding the evolving direction of the Board.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.