In 2019, the Board held that “mere griping” about something at work, without evidence of preexisting group concerns about the matter, was not concerted activity for mutual aid of protection.5 In the case, an employee was overheard complaining to another employee that a customer was “wasting [his] f***ing time.” The Board held that the employer didn’t violate the employee’s section 7 rights when it terminated his employment. However, the current Board appears to be taking a broader view of protected, concerted activity, and that is expected to continue.

The NLRB has also held that a single employee may engage in protected concerted activity if that individual acts on the authority of other employees, brings group complaints to the employer’s attention, attempts to induce group action or seeks to prepare for group action.6

For example:

• In Triple Play Sports Bar and Grille, the Board found that an ongoing discussion among four employees on Facebook, including the act of selecting the “Like” option under a former employee’s initial status update about an employer’s calculation of employee tax withholding, was protected, concerted activity.7
• In Healthy Minds, Inc., the Board found that a discharged employee engaged in protected, concerted activity by soliciting another employee’s assistance with her pursuit of a legal claim for unpaid overtime wages owed to the employees, even though the solicited employee declined the request and reported it to the employer.8

In 2019,9 the Board overruled a 2011 decision10 which held that a single employee who gripes in a group setting is per se engaged in protected activities under the NLRA. Specifically, the Board held that an individual employee’s complaint to his manager about customer tipping was not protected concerted activity under the Act even though the complaint was made in front of other employees, significantly narrowing the categories of behaviors regarded as “protected concerted activity” under the NLRA.

Not surprisingly, in 2023, the Board expanded the test for determining concerted activity and returned to a fact-sensitive “totality of the circumstances” approach.11 The Third Circuit Court of Appeals has since affirmed the Board's expansion of this applicable test and stated that the “touchstone for an individual's concerted activity” is “whether the employee intends to induce group activity or whether the employee's action bears some relation to group action in the interest of the employees.”12 The Board also has further expanded Section 7 protections by returning to a long-standing precedent permitting concerted activity by statutory employees on behalf on nonemployees, including interns.13 The Board reversed a 2019 decision14 and explained that such efforts by employees toward nonemployees can benefit employees by improving their own working conditions or by leading nonemployees to later return the help they have received.

The GC and Board have taken a more expansive view of what constitutes protected concerted activities and will continue to do so. For example, on January 31, 2022, the NLRB issued an advice memorandum regarding whether an employee’s social media post complaining about a colleagues’ management style, with a shrugging meme, constituted Section 7 protected concerted activity.15 And, if so, whether the posting employee’s subsequent termination violated the NLRB’s prohibition against retaliating against workers for such action. The advice memo answered “yes” to both inquiries, marking the NLRB’s first foray in determining whether gifs, emojis or emoticons are protected, concerted activity, and directed the NLRB to issue a complaint against the employer in the event the dispute is not settled.

• A Board administrative law judge recently determined that a hospital unlawfully discharged an employee who posted on her private Facebook page that she had a vendetta against an unnamed manager and was “coming for her.”16 The employee's post additionally stated she was “tired of bullies” and stated her goal was to become a leader so she could run the hospital differently and hold employees accountable. The judge noted that the fact the post did not identify the person against whom the employee had a vendetta weighed against finding a threat of violence. Because the employer failed to demonstrate that subject matter of the employee's otherwise protected post was not so extreme and egregious to lose the Act's protection, the judge concluded that the employer unlawfully discharged the employee.

In the 2024 Home Depot decision, the NLRB ruled an employer violated federal law when it directed an employee to remove the hand-drawn acronym for Black Lives Matter — “BLM” — from their work apron to comply with the company’s dress code. Based on the particular facts of this case (which include workplace discrimination complaints and attempts to discuss the conduct with management), the NLRB said wearing BLM on their uniform was protected concerted activity under the NLRA because it was a “logical outgrowth” of the employee’s prior complaints about workplace discrimination and their attempts to address those complaints.17

• In November 2025, the Eighth Circuit vacated and remanded the split decision in Home Depot.18 The Eighth Circuit directed the Board to properly balance the special circumstances in this case, including the store's proximity to the site of George Floyd's death and the store's prior closure due to related unrest, and to then determine those whether those special circumstances justified the store's enforcement of its policy related to employee uniforms. However, the Eighth Circuit declined to address the question of whether the employee's conduct was protected under Section 7 of the Act. This is one area where the Trump Board ultimately may clarify if and when Section 7 rights extend to political or social speech that may not be directly connected to terms and conditions of employment. Employers should consult with legal counsel regarding questions related to protected concerted activity and political or social speech.

The NLRB additionally ruled that an employer violated the Act when it disciplined, suspended, and discharged an employee for raising concerns about the loosening of COVID-19 safety protocols, even though a customer had complained about the employee and a coworker reported that the employee had used equipment unsafely. The Board reasoned that the close timing between the employees’ safety complaints and her suspension, in addition to the employer’s failure to meaningfully investigate any of the allegations of misconduct, created a strong inference that the discharge was unlawful.19

Further reflecting the importance of the timing of adverse employment actions, one administrative law judge also determined an employer violated the Act by terminating employees for remaining on-site after hours to attend a union meeting under a seldom-enforced policy prohibiting employees from remaining at the store after closing hours.20 There, the employer terminated four employees after they attended a union meeting in the employer's store after hours. The union had been actively organizing employees at the store, and no one communicated that employees needed to leave the store by closing time, only that they needed to be off the clock for the meeting. Because there was no evidence that any unsafe conduct transpired during the meeting and the employer had not consistently enforced its after-hours policy, the judge concluded the more plausible reason for the employer's sudden enforcement of its policy was because the employer harbored anti-union animus and therefore terminated employees unlawfully.

Not all concerted activities, however, are protected.

In 2020, the Board ruled that abusive conduct, such as profane outbursts and offensive statements of a racial or sexual nature in the workplace, will be evaluated under one standard: absent evidence of discrimination, employers may discipline employees for such conduct and statements, even when they are made in connection with some other concerted activity.21

However, in 2023, the NLRB overruled the 2020 decision and reinstated several prior “setting-specific” tests used to determine when an employee’s outburst is protected by the NLRA. So instead of applying a single standard to an employee’s outburst, covered employers must consider the context and various factors before taking disciplinary action.22

For example, if the employee conduct at issue was directed toward management in the workplace, the NLRB applies the Atlantic Steel test, which looks at four factors:

1. The place of the discussion;
2. The subject matter of the discussion;
3. The nature of the outburst; and
4. Whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

If the conduct was a conversation amongst employees in the workplace or a social media post, the conduct is evaluated under a totality of the circumstances test, considering all relevant context.

The NLRB’s decision also restores a setting-specific test for picket-line conduct with an analysis of whether non-strikers reasonably would have been coerced or intimidated by the picket-line conduct.

On July 9, 2024, the Fifth Circuit Court of Appeals vacated the Board’s 2023 decision, remanded it, and directed the Board to rule on the case under the 2020 General Motors, LLC framework.23 The Court determined that the Board had exceeded the scope of the Court’s original remand order because the remand order “was not an invitation for the Board to reconsider what legal standards should apply but rather an instruction to apply the legal standards set forth in General Motors.” Thus, the Court remanded it once more for the Board to apply the General Motors, LLC framework to that specific case. The Board has yet to issue its decision, and the Fifth Circuit did not opine whether the General Motors case or Atlantic Steel case should be the applied to employee conduct in all other cases.

The NLRB was already moving away from this 2020 standard, as evidenced by the D.C. Circuit, in August 2022, affirming the Board’s decision to reinstate an employee who wrote “whore board” on a mandatory overtime sheet.24 Both the Board and the D.C. Circuit reasoned that because the employer had generally tolerated employees’ previous use of this phrase, as well as general use of profanity and vulgarity in the workplace, the employer could not show that it would have terminated the employee absent his complaints about the new overtime policy. This decision underscores the importance of consistently applying policies.

Under the Board’s recent decision, disciplinary actions may come under more scrutiny or potentially violate the NLRA if the offensive or abusive conduct arguably occurs in the context of engaging in protected activity under the NLRA. When considering discipline for employee outbursts, employers should look carefully at the context and content to determine if the employee was engaged in protected activity.

1. NC-DSH, LLP d/b/a Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016)