The National Labor Relations Act’s employee protections extend beyond unionized workplaces or those undergoing organizing activities. Section 8(a)(1) of the NLRA prohibits employers from retaliating against employees who engage in protected concerted activity. Concerted activity means two or more employees bring criticisms of terms and conditions of employment to management’s attention. Earlier this month, the reliably conservative Fifth Circuit Court of Appeals upheld key portions of a NLRB decision that held a home healthcare agency liable for retaliating against an employee who complained about COVID-19 protocols.

In Renew Home Health v. NLRB, the employee in question had been openly critical about company practices, resulting in a reprimand for raising such issues during a training session. Subsequent to this counseling, she criticized COVID-19 measures put in place by the employer as inadequate and organized a petition to the employer signed by a number of co-workers. The agency then terminated the plaintiff because one of the signatories to the petition later told the company that she had not authorized use of her name.

The Fifth Circuit affirmed the administrative law judge’s determination on the termination, finding adequate evidence to conclude that it was done in retaliation for her earlier complaints. The employer claimed that the alleged falsification of one employee’s signature motivated the termination decision, but the court found discriminatory intent behind the decision.

This case should remind employers that in many circumstances, employees are legally entitled to complain about terms and conditions of work, even in situations that the company considers inappropriate, disruptive, or detrimental to employee morale. Absent clearly abusive or inappropriate behavior by a complaining worker, employers should seek ways to respond to criticism other than disciplinary action against the complaining party.

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