Can you fire an employee for criticizing your DEI program on LinkedIn?

Richardson, a data engineer at Apex Fintech Solutions, published a series of LinkedIn articles criticizing what he viewed as the company’s DEI culture. He accused Apex of tolerating anti-male discrimination, fostering a hostile work environment, and allowing managers to engage in discriminatory conduct without consequence.

Apex demanded he remove what it called “false, derogatory, disparaging, and/or defamatory” statements. When Richardson asked the company to identify what, specifically, was false, it didn’t. Instead, it fired him—and then sued him for defamation.

Last week, an NLRB administrative law judge concluded Apex violated the National Labor Relations Act.

Whether you agree with Richardson’s views is beside the point. The issue wasn’t whether he was right. It was whether federal labor law protected his speech.

According to the ALJ, it did.

The judge found Richardson’s LinkedIn posts were protected concerted activity because they addressed employees’ working conditions and encouraged coworkers to take collective action, including filing EEOC charges. The NLRA doesn’t limit protected discussions to the workplace. Employees can exercise their Section 7 rights on social media just as they can in a break room.

Apex argued Richardson’s posts lost the Act’s protection because they were false and defamatory.

The ALJ disagreed.

The NLRA does not protect statements that are knowingly or maliciously false. But employers don’t get to strip employees of statutory protection simply because management believes the criticism is unfair, exaggerated, or damaging to the company’s reputation.

According to the ALJ, Apex failed to prove Richardson knowingly made false statements. In fact, when Richardson asked the company to identify what was supposedly false, it never did.

That’s an important distinction. Employees can criticize management, express opinions, and use strong rhetoric without automatically losing the Act’s protection.

The termination wasn’t the only problem. The ALJ also concluded Apex unlawfully ordered Richardson to stop discussing workplace issues publicly, maintained overly broad confidentiality and non-disparagement policies that could chill protected employee speech, and retaliated by filing a defamation lawsuit based on Richardson’s protected activity.

That last point is particularly noteworthy.

Employers certainly can sue employees for genuine defamation. But when the underlying speech is protected by the NLRA, a lawsuit itself can become an unfair labor practice if it’s intended to punish or silence protected activity.

Too often, employers respond to public criticism by trying to make it disappear. They send a cease-and-desist letter, demand the post come down, threaten litigation, or terminate the employee.

That’s a risky strategy. Indeed, before taking any action, ask these questions:

• Is the employee discussing wages, discrimination, safety, scheduling, management practices, or other working conditions?
• Are they speaking only for themselves, or attempting to involve coworkers?
• Does the post invite collective action?
• Are the challenged statements factual assertions that can actually be proven false, or are they opinions and rhetoric?
• If you believe factual statements are false, can you specifically identify them and prove they were knowingly or maliciously made?

How you and your labor counsel answer these questions will inform and advise whether you are dealing with protected concerted activity.

Social media has become today’s break room or water cooler. Employees don’t lose their Section 7 rights because the conversation happens on LinkedIn instead of over coffee.

Often times the smartest response isn’t trying to silence the criticism.

It’s recognizing that employees have broad rights to criticize their workplace—even publicly—and ensuring your response doesn’t become the much bigger story.

     

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