Employee Complaints, the NLRA, and the NLRB: What Employers Need to Know

Can employees complain about their boss? For employers, the answer is more complicated than a simple yes or no. In this Fired Up Fridays webinar, attorney Elijah Larson of Employer-Lawyer explains how employee complaints can create risk under the National Labor Relations Act, commonly called the NLRA, even in non-union workplaces.

The webinar begins by addressing one of the most common misconceptions in employment law: at-will employment. Many employers understand that at-will employment generally allows a business to terminate an employee for any lawful reason or no reason at all. But Larson emphasizes that “at will” is not a trump card. A termination can still become legally risky if it interferes with rights protected by federal employment laws, including the NLRA.

While many business owners are familiar with discrimination laws such as Title VII and the Americans with Disabilities Act, fewer recognize when employee complaints may involve the protected concerted activity enforced by the National Labor Relations Board. The NLRA protects most private-sector employees who act together to improve wages, hours, benefits, safety, schedules, policies, discipline, supervision, or other working conditions. Importantly, these protections can apply whether or not the workplace is unionized.

A key theme of the presentation is that the NLRA applies to far more employers than many businesses realize. Larson explains that small businesses can fall within the NLRB’s jurisdiction if they are private-sector employers whose business affects interstate commerce and meet applicable dollar-volume standards. For many employers, that threshold is lower than expected, which means NLRA issues should not be dismissed as problems only for large companies or unionized workplaces.

The webinar then focuses on the concept of concerted activity. Protected concerted activity usually involves two or more employees acting together to address workplace issues. Examples include employees discussing wages, benefits, schedules, safety concerns, workload, policies, or treatment by management. It can also include circulating a petition, raising concerns to a government agency, or complaining together about a supervisor or workplace practice.

One of the most important points for employers is that a single employee may also be protected in some circumstances. If one employee is speaking on behalf of co-workers, bringing a group complaint to management, trying to start group action, or preparing for group action, the complaint may fall within the NLRA. That distinction matters because an employer may see the situation as one employee being difficult, while the NLRB may see it as protected activity.

Larson also walks through what happens when an employee files an unfair labor practice charge with the NLRB. Generally, an employee has six months from the alleged unlawful conduct to file a charge. The NLRB may investigate through a regional office, interview witnesses, request documents, and take affidavits. If the agency believes the charge has merit, it may attempt settlement or issue a formal complaint that proceeds to an administrative hearing.

The cost and disruption of that process can be significant. Larson explains that NLRB matters can take a long time to resolve, and if an employee is found to have been unlawfully terminated or disciplined, potential remedies may include back pay and other consequences. For employers, this makes prevention, documentation, and early legal review especially important.

The webinar highlights several complaint scenarios that Employer-Lawyer has seen recently, including employees being disciplined or terminated after discussing wages, encouraging others to discuss pay, complaining about quotas, or raising concerns about treatment from management. Wage discussions are a particularly important example. Policies that prohibit employees from discussing compensation with co-workers are likely to create legal risk under the NLRA.

Larson also discusses how artificial intelligence is changing workplace complaints. Employees may now use tools like ChatGPT or Claude to draft complaints, strengthen their language, or frame an individual concern as a group workplace issue. Sometimes this may be intentional, and other times an employee may not realize the legal significance of the wording. Either way, AI-generated complaints can increase risk for employers because they may include phrases such as “we,” “everyone,” “the team,” or other language suggesting group action.

For businesses, the practical takeaway is not to overreact when a difficult employee begins complaining. Instead, employers should slow down and evaluate whether the complaint involves wages, hours, safety, workload, policies, discipline, or other working conditions. They should also look carefully at whether the employee is speaking only for themselves or purporting to speak for others.

Documentation is central to the employer’s defense strategy. Larson emphasizes the importance of documenting legitimate performance concerns, policy violations, disciplinary history, and business reasons for employment decisions. But that is only half the picture. Employers should also document their good-faith response to the employee’s complaint, including any investigation, meetings, follow-up, or corrective steps taken.

The webinar also clarifies what is not protected. Purely personal gripes that have no connection to co-workers or group workplace concerns are generally not protected under the NLRA. An employee does not receive a free pass to refuse lawful instructions, harass co-workers, engage in discriminatory conduct, make egregiously offensive statements, or publicly attack the company’s products or services in a way unrelated to a labor dispute.

The overall message is practical: employees may be allowed to complain about management when those complaints involve group workplace concerns, but not every complaint is protected. The challenge for employers is knowing the difference before taking disciplinary action.

If your business is dealing with employee complaints, wage discussions, AI-drafted grievances, performance issues, or a potential NLRB charge, Employer-Lawyer can help. Before terminating or disciplining an employee who has recently complained about workplace conditions, consider speaking with an employment law attorney to evaluate the risk and protect your business.