Other Federal Agency Updates
NLRB Issues Advice Memorandum Regarding On-Site Employee Protest
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APPLIES TO All Employers |
EFFECTIVE JUL 10, 2026 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
On July 10, 2026, the National Labor Relations Board’s (NLRB) Division of Advice issued an advice memorandum (which was later released to the public on August 30, 2026) concluding that the termination of two employees did not violate the National Labor Relations Act (NLRA) because the protest those employees organized was not protected concerted activity. Advice memoranda reflect the NLRB’s conclusions and guidance to regional offices on how to proceed with a particular charge. Importantly, they are not binding precedent, but they do offer meaningful insight into how the NLRB’s General Counsel interprets the law and may approach similar cases.
This case arose from a protest organized by two Microsoft employees at the company’s Redmond, Washington campus. The event, which included a walkout, vigil, speaker series, and fundraiser, was timed to coincide with an international day of action organized by No Tech for Apartheid, an outside organization. Its stated purpose was to pressure the company to end its Azure cloud computing contracts with the Israeli government and to raise awareness and funds related to the conflict in Gaza. The invitation was sent company-wide and also advertised publicly on social media. Before the event, security personnel notified the organizers that the protest could not be held on company property because it was advertised to non-employees, was not authorized by the company, and was sponsored by an outside organization. Despite security offers to relocate the event to a nearby public property, the organizers proceeded to host the event on-site. The company terminated both employees for violating company policy and failing to comply with the security directives.
In evaluating the terminations, the memorandum started by reiterating that the NLRA protects employees when they act together for “mutual aid or protection,” meaning to improve their terms and conditions of employment. The memorandum concluded that the protest fell outside that protection because its objectives were to change the company’s business relationships with a foreign government and to advance a humanitarian cause, not to improve the organizers’ working conditions. The memorandum acknowledged that the protest invitation linked indirectly to a months-old petition that included one demand loosely tied to employee safety, but found this to be insufficient on its own to bring the entire demonstration within the NLRA’s coverage.
Although specific to this particular set of facts, the memorandum emphasizes that employees cannot extend the NLRA’s protections “by wrapping an unprotected goal in a protected one.” The argument that the company’s political relationships could harm its public reputation, hurt its financial performance, and ultimately affect employee compensation was also rejected as too attenuated to constitute a workplace concern.
While this case turned on its specific facts (e.g., an outside-organized event, advertised to non-employees, held on company property without authorization, and preceded by a written warning and an offer of an alternative location), the result could be different where a demonstration actually centers on pay, safety, scheduling, or other working conditions, all of which are squarely within the NLRA’s coverage. Employers should also be aware that certain states impose additional protections for employee political activity that apply independently of the NLRA, and that the federal analysis alone may not be sufficient in those jurisdictions.
Action Items
- Consult with legal counsel when responding to employee demonstrations or group activity.
OSHA Releases Opioid Overdose Guidance for Employers
On September 24, 2026, the Occupational Safety and Health Administration (OSHA) released a fact sheet, titled Opioid Overdose Rescue with Reversal Medications, as part of a broader government effort to prioritize addiction treatment and recovery in the workplace. The fact sheet recommends that employers keep FDA-approved reversal medications such as naloxone on hand, store overdose kits in visible and accessible locations, train employees to recognize overdose symptoms, and prepare to respond until first responders arrive. The guidance does not create any new OSHA requirements or modify existing standards, including OSHA’s Medical Services and First Aid standard or its recordkeeping regulation. Employers should nonetheless consider reviewing their emergency response plans to confirm they address opioid overdose situations, and may want to develop a naloxone policy that addresses employee rights around administration of the medication. Employers in states with their own OSHA programs should check whether state law imposes any additional obligations, and should consult with legal counsel when implementing or revising their existing safety plans.
EEOC Moves to Repeal Criminal Background Check Guidance
On October 6, 2026, the White House Office of Management and Budget (OMB) received a draft final rule from the EEOC proposing to repeal its 2012 guidance on the use of arrest and conviction records in employment decisions under Title VII. If OMB approves the rule, the EEOC is expected to publish and repeal the guidance quickly, though no timeline has been confirmed. Employers should note that repeal of the guidance does not eliminate liability in this area. Applying criminal background policies more harshly against one protected class than another could still constitute disparate treatment under Title VII, and the EEOC is expected to continue pursuing those charges. Additionally, while the current EEOC leadership has indicated it will not pursue disparate impact claims in this area, that theory remains available to private plaintiffs under federal law and continues to be recognized under many state non-discrimination laws. Employers should continue to monitor developments and consult with legal counsel before making changes to criminal background check policies.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase