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.
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.
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