If you have a general understanding of U.S. employment law, you are likely aware that most jurisdictions adhere to the doctrine of employment-at-will, meaning that employees who lack the protections of a “cause” provision in an employment agreement or collective bargaining agreement may be fired for a good reason, bad reason, or no reason at all – so long as the reason is not illegal.

You are also likely aware that the First Amendment to the U.S. Constitution (and similar provisions of most state constitutions) protects individuals against government restrictions on speech, but not against employer speech restrictions in the private sector workplace.

Taken together, one might reasonably infer from these two legal truisms that a private sector employer may lawfully fire or discipline an employee who engages in speech that the employer deems derogatory, obnoxious, or offensive. While in some cases this is correct, the reality is that a web of federal and state laws protect many types of employee speech that relate to the substantive protections such laws create.

Indeed, as the employer in a recent National Labor Relations Board (NLRB) administrative law judge (ALJ) decision (Apex Fintech Services, LLC, No. 12-CA-325317 (July 24, 2026) learned the hard way, the National Labor Relations Act (NLRA) in particular provides robust protections for employees who publicly voice workplace complaints. As this case demonstrates, when disgruntled employees take to social media to air such grievances, employers should proceed cautiously and be mindful of their obligations under the NLRA.

What Does the NLRA Protect? Understanding Section 7 and NLRA Protections for Employee Speech and Workplace Complaints

As a quick refresher, the NLRA applies to most non-supervisory, private sector employees, whether union or non-union. In addition to providing the right to bargain collectively, Section 7 of the NLRA protects the right of covered workers to engage in other concerted activity “for mutual aid and protection.” While an obvious example of “concerted” activity would be a group complaint signed by multiple activity, the NLRB construes the term broadly to include, among other things, individual activity that seeks to induce collective action. Generally, such concerted activity is protected by Section 7 when it concerns terms and conditions of employment. Suffice it to say, while the NLRA does not protect some extreme forms of employee expression, under current NLRB standards, employers must meet a very high bar to show that otherwise protected employee speech has lost its protection due to defamatory or other purportedly objectionable content. Obscenity or unpleasant opinions typically do not suffice.

Employee Social Media Posts and NLRA Liability: The Apex Fintech Case

In Apex Fintech, the aggrieved employee (or “charging party” in NLRB terminology) made a series of complaints to his employer’s human resources department regarding what he perceived as discrimination against white males tolerated by the company and perpetuated by its diversity, equity, and inclusion (DEI) program. The charging party’s complaints included allegations regarding jokes made on a company Slack channel, the existence of women-only company programs, and anti-male comments made by members of management during company DEI panels. (In addition to internal complaints, the charging party also filed a charge of discrimination with the Equal Employment Opportunity Commission, which he ultimately did not choose to litigate.)

The charging party’s complaints resulted in an internal investigation conducted by outside counsel, the outcome of which is unclear. During the course of the investigation, a human resources representative admonished the charging party to keep the investigation confidential and to “avoid naming specific employees or discussing details related to the ongoing investigation.”

The situation came to a head after the charging party made two posts to his LinkedIn account criticizing the company’s DEI initiatives and alleging that the company had, “allowed outright hate to proliferate...” As recounted by the ALJ, after the second LinkedIn post, the company “demanded” that the charging party, “remove any false, derogatory, disparaging and/or defamatory statement [sic] from his post by the next day.” The charging party sought clarification about which of his statements fell into these categories. Apparently, the company did not respond with any specifics.

Shortly thereafter, the company fired the charging party, based on what it characterized as his “false, disparaging, and defamatory statements about the company and several of its employees,” which the company further asserted were in violation of an “Employee Agreement Regarding Confidentiality, Non-Competition and Non-Solicitation,” which charging party had signed during his employment. About six weeks after terminating him, the company further raised the stakes by suing the charging party for defamation based on the content of his LinkedIn posts.

Why the NLRB Found the Employee’s LinkedIn Posts Were Protected Concerted Activity

A few days after his termination, the charging party filed a charge with the NLRB, which eventually resulted in the NLRB’s General Counsel pursuing unfair labor practice charges on his behalf in December 2025. Ultimately, following an unfair labor practice hearing held in May 2026, the ALJ found that the company had committed multiple unfair labor practices against the charging party, including:

• Unlawfully interfering with his right to engage in activity protected by Section 7 (such as the LinkedIn posts)
• Terminating his employment and suing him in retaliation for his protected activity
• Maintaining an unlawful confidentiality rule that had a reasonable tendency to chill the exercise of employee Section 7 rights

In reaching these conclusions, the ALJ found that the charging party’s individual LinkedIn posts and other actions constituted protected concerted activity because the charging party, “clearly sought to enlist other employees in his crusade against what he perceived as [the company’s] discrimination against males.” Critically, the ALJ further concluded that the charging party’s otherwise protected statements had not lost the protection of the NLRA because the company had failed to show that the charging party’s purportedly defamatory statements were “maliciously false” or, for that matter, that the statements were false at all. The fact that the charging party had voiced “negative opinions” about the company’s management, DEI program, and work atmosphere were not sufficient for him to lose the protection of the NLRA. On the basis of these findings, the ALJ ordered the company to offer the charging party reinstatement and to make him whole for his lost wages and other pecuniary losses.

How Employers Can Respond to Workplace Complaints While Maintaining Compliance

While the case may appear novel due to the centrality of the Company’s DEI initiatives, the reality is that the ALJ’s decision largely rests on well-established NLRB precedents concerning the scope of employee speech protected by Section 7. The outcome – and key lessons for employers seeking to avoid similar disputes – would likely be the same if the charging party’s complaints had focused on the company’s safety policies instead of DEI

What are those key lessons?

1. It’s important for non-union private sector employers to recognize that the NLRA nevertheless protects the right of their non-supervisory employees to engage in concerted activity concerning terms and conditions of employment. 
2. Employers should be aware that in many cases, individual employee complaints about the workplace will be considered “concerted” for NLRA purposes, for example where an individual employee is directly attempting to induce group action or where an individual social media post is “liked” by sympathetic co-workers. 
3. When confronted by employee complaints about the workplace, attempting to silence an aggrieved employee through threats, disciplinary action or the use of litigation rarely leads to a positive outcome for the employer.

While employers may not be able or willing to meet employee demands, listening with an open mind may result in mutually acceptable solutions that address small issues before they turn into bigger ones. There certainly are cases where complaints cross the line and warrant discipline up to and including an employee’s termination; in those circumstances it is critical to work with legal counsel to ensure that the focus remains on unprotected conduct and the enforcement of lawful policies, and not on going tit-for-tat with a disgruntled worker. While it may be human nature to react emotionally and harshly when an employee publicly attacks management and company policy, the challenge of effectively navigating a reasoned and lawful response pales in comparison to the time, cost, and heartache involved in being the subject of federal court litigation or administrative proceedings before agencies like the NLRB.

Connect with Our Workplace Solutions Team

If you have questions regarding the National Labor Relations Act, please contact Emmanuel “Manolis” Boulukos, or any of the member of Ice Miller’s Workplace Solutions Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.