By Dare Heisterman and Shannon Chao
Your phone rings late Friday afternoon. It’s Beverly, the CEO of your newest client. Beverly does not bother with pleasantries. “I just got a charge from the National Labor Relations Board,” she says. “Why did I get this, we have no union here?” she laments. She then explains that she recently fired a new employee for complaining about pay.
When you ask for more details, Beverly explains that the employee came to her office a few weeks ago and demanded a raise for himself and his coworkers. The employee told Beverly that he and others planned to leave work next week if they did not get the raise.
Before you can respond, Beverly adds that another employee came to her this morning and said that she and others were worried about employees coming into the office sick. She told Beverly that anyone who coughs should be required to wear a mask.
Frustrated, Beverly says, “I am sick of these complaints. Masks when someone coughs?! I am going to fire them and anyone else who complains.”
How should you advise Beverly?
Employee Section 7 rights
Beverly’s experience illustrates a common—and often misunderstood—area of labor law: the scope of employee rights, even in non-union workplaces. Under Section 7 of the National Labor Relations Act (“NLRA”), most private-sector employees have a foundational right to join together to improve their working conditions. More specifically, employees have the right to form or join a union, bargain collectively, and otherwise engage in “concerted activities” for “mutual aid or protection.” 29 USC § 157.
Employees engage in “protected concerted activities” any time they take group action or submit a group complaint that is focused on their terms and conditions of employment. Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB 151, 153 (2014). Importantly, these rights apply not only to unionized workplaces but also to nearly every private-sector employer, including those with non-union workforces. When an employer interferes with an employee’s right to engage in protected concerted activities—either through an overly broad rule/policy or discipline or termination—the employer has likely violated the NLRA and could be forced to defend its actions before the National Labor Relations Board (“NLRB” or “Board”).
The NLRB is the federal agency tasked with enforcing the NLRA. The Board currently uses a fact-intensive “totality of the circumstances” test to determine whether an employee has engaged in protected concerted activities. Miller Plastic Prods., Inc., 372 NLRB No. 134, 7 (2023). Additionally, the Board has historically interpreted “concerted activity” broadly to protect a wide range of employee conduct, even including individual actions if they are a “logical outgrowth” of group concerns.
For example, the Board considers the following employee actions protected:
- Discussing wages with coworkers. The Board has long considered wage discussions to be “inherently concerted activity” protected by the NLRA.
- Raising safety concerns to management. The Board has also consistently held that an employee raising safety concerns on behalf of or impacting more than one employee is engaging in protected concerted activity. For example, the Board held that an employee engaged in protected concerted activity when the employee raised concerns about an employer’s operations and lack of COVID precautions during a team meeting. Miller Plastic Prods., Inc., 372 NLRB No. 134 (2023).
- Walking off the job. Employers often recognize that employees have the right to strike, but what about walking off the job without making a specific demand or notifying the employer they are “striking” only after walking out? If the walkout is motivated by legitimate employee concerns about working conditions, the walkout will normally be considered protected concerted activity. For example, a group of employees who spontaneously walked out together after one employee asked others if they wanted to continue to “put up with” their manager’s “disrespect” were found to have engaged in protected concerted activity. Hiran Management, Inc., 373 NLRB No. 130, 15 (2024).
While the above list includes some of the more common and recent examples of “concerted activity” protected by Section 7 of the NLRA, it is not an exhaustive list. The Board has reiterated that a “myriad of factual situations” could be considered concerted activity. Miller Plastic Prods., Inc., 372 NLRB No. 134, 3 (2023).
What constitutes interference with an employee’s Section 7 rights?
Under Section 8(a)(1) of the NLRA, an employer commits an unfair labor practice (“ULP”) if it interferes with, restrains, or coerces employees in exercising their Section 7 rights. The Board analyzes alleged violations by determining whether the employer engaged in conduct that “reasonably tends to interfere” with the free exercise of employee rights under the NLRA, regardless of the employer’s motive or whether the coercion succeeded or failed.
Examples of employer conduct that violate the NLRA include:
- Discharging, disciplining, or taking other adverse action against an employee for engaging in protected concerted activities.
- Implementing handbook policies or work rules that have a reasonable tendency to chill employees’ exercise of Section 7 rights, such as outright bans on discussing wages among employees or rules against joining outside organizations or voting on matters concerning the employer.
Additional considerations for employers
Employers should note that the Board’s enforcement objectives under the NLRA and governing legal standards are often in flux depending on the current political climate. For example, the current NLRB General Counsel—recently sworn in and tasked with determining prosecutorial policy and enforcement priorities—has already signaled that she will take a more selective approach in pursuing charges over alleged handbook policy and work rule violations. See NLRB Memorandum GC 26-03. In addition, the last time President Trump was in office, the Board adopted a narrower interpretation of what constitutes “protected concerted activities.” See Alstate Maintenance, LLC, 367 NLRB No. 68 (2019). Despite the prospect of these changes, employers should remain mindful of the risks involved when considering actions that may interfere with employee rights to join together to improve their terms and conditions of employment.
About the authors
Dare Heisterman is a partner at Kamer Zucker Abbott with nearly a decade of experience representing employers in labor and employment matters and NLRB proceedings. Dare thanks and acknowledges the contributions of Shannon Chao, a labor and employment attorney and graduate of UNLV’s Boyd School of Law, to this article.
About the article
This article was originally published in the Communiqué (May 2026), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2026/communique-may-2026/.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
© 2026 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.