Can you fire an employee for complaining? Not if the complaint is about pay, training or working conditions and the employee is speaking for coworkers. The National Labor Relations Act protects this "concerted activity" in nonunion workplaces too. In a September 2026 decision, the NLRB ordered a small Maryland home care agency to reinstate a new hire it fired hours after she raised group complaints.
Key Takeaways
- The National Labor Relations Act protects nonunion employees. When two or more employees complain about pay, training or working conditions, it is "protected concerted activity" whether or not there is a union.
- One employee speaking up for the group is protected. A new hire on probation who raised complaints her coworkers shared could not be fired for it.
- "If you're unhappy, maybe you should leave" can be an unlawful threat. Said in response to group complaints, it implies that complaining will cost the employee her job.
- HIPAA does not cover an employee's own employment agreement. Using it to stop an employee from sharing her pay terms was an unlawful restriction.
- Shifting reasons for a firing look like a cover story. A termination notice and a separation notice that gave different reasons helped sink the employer's defense.
- The cost is real, even for a small company. The employer owes reinstatement, backpay going back to 2022 with interest, out-of-pocket losses and tax gross-ups, and must post a notice to employees.
What Happened: A New Hire, a $2,500 Repayment Agreement and a Zoom Call That Ended in a Firing
In the summer of 2022, a small home care case management agency in Maryland hired a new support planner. Her job was to coordinate in-home services for elderly and disabled Medicaid clients. Like other new hires, she signed an "Employment Security Agreement." If she quit or was fired for cause during her first year, the agency could deduct $2,500 from her pay to recover the cost of training her. (This can be a violation of the Fair Labor Standards Act, but that’s a topic for another post).
Within a few weeks, she decided the training wasn't worth much. She said so to her coworkers, to her team leader and to the administrative manager. It wasn't fair, she said, for "we" to have to pay back the cost of training that didn't prepare anyone for the job. Her coworkers agreed. Her team leader passed the concerns up to the compliance director.
She also asked about money. Maryland had purportedly approved a 6% rate increase for home health aides, and she believed support planners qualified too. Management told her she was wrong and wasn't eligible.
The Zoom call
On August 3, 2022, about two months into the job, a routine Zoom meeting with her team leader turned into a series of calls with more and more managers joining. When she raised the repayment provision again, the compliance director told her she hadn't done her "due diligence" before signing, that she seemed unhappy and that maybe she should leave.
The employee asked to share her Employment Security Agreement with the others on the call so they could see what she was talking about. The agency's administrator stopped her. Sharing it would “violate HIPAA,” she said, and she would end the meeting if the employee tried. The administrator then declared that this "seems like a performance issue" and ended the call.
That evening, the employee was fired.
The reasons for termination kept changing
The first termination notice said she couldn't perform the job and had been grossly negligent in entering information into the agency's tracking system. A later notice of separation added a much longer list: Medicaid fraud, late submissions, documenting non-billable activities, insubordination and falsifying activities. Her exit letter also warned that the agency could take legal action if she made "defamatory" statements.
She filed a charge with the National Labor Relations Board. After a hearing, an administrative law judge didn't believe the managers. He found the agency's stated reasons were a pretext and that performance documents it relied on had been fabricated. On September 30, 2026, more than four years after the firing, the Board largely agreed (NLRB Case No. 05-CA-301128).
Would your managers have handled this differently? Most of these mistakes happen because no one with HR or legal training is involved until it's too late. Take our free Workplace Diagnostic Questionnaire to see where your organization is exposed, or schedule a confidential consultation.
What Did the NLRB Decide About Firing an Employee for Complaining?
The Board found that the agency broke federal labor law four separate ways, and it ordered the employee reinstated with backpay (Board decision, 375 NLRB No. 56). No union was involved at any point.
Firing an employee for group complaints was illegal
The employee's complaints about the training and the $2,500 repayment were "concerted" because she was raising concerns her coworkers shared, and she was bringing those group complaints to management. Nobody had to formally appoint her as a spokesperson. The Board pointed to the timing (fired hours after the Zoom call), the managers' knowledge that the complaints came from the group, and the shifting, unsupported reasons for the firing. That was enough to show the real reason was her protected activity.
Telling an employee to quit if she's unhappy was an implied threat
Telling an employee who is raising group complaints that she should quit if she's unhappy sends a message: keep complaining and you'll be gone. The Board found that comment, in that context, unlawfully threatened her with discharge. One Board member noted that "quit if you're unhappy" statements aren't automatically illegal. Wording and context matter.
Using HIPAA to stop an employee from sharing her employment agreement was illegal
The judge had dismissed this claim, but the Board reversed him. The administrator's statement would reasonably be understood as a blanket ban on sharing the agreement with anyone, including coworkers and the NLRB itself. Employees have a right to discuss their terms of employment, and an employment agreement is exactly that.
Threatening a defamation lawsuit in an exit letter was illegal
The agency's exit letter broadly threatened legal action over "defamatory" statements. The Board found that language, and the agency's continued use of it, unlawful because it would discourage employees from talking about their jobs and their treatment, including to the NLRB. Employees can be held to account for statements they know are false, but a vague threat of a lawsuit goes further than that.
The handbook confidentiality rule is still being decided
The Board set aside a separate claim that the agency's handbook confidentiality rule was overbroad, so it could issue the rest of the decision. That issue remains open.
What remedies did the NLRB order?
The agency must:
Offer the employee her job back within 14 days.
Pay backpay and lost benefits with daily compounded interest, going back to August 2022.
Pay her other out-of-pocket losses caused by the firing, such as job-search costs.
Cover any extra taxes she owes from receiving backpay in a lump sum.
Remove the firing from her records.
Post a notice to employees for 60 days, including electronically, admitting it broke the law and promising not to do it again.
Does the NLRA Apply to Nonunion Employers?
Yes. Most small business owners are surprised to learn that the National Labor Relations Act covers almost every private employer, union or not. Section 7 of the Act gives employees the right to act together "for mutual aid or protection." That includes complaining together, or on behalf of coworkers, about pay, training, schedules, safety and other working conditions.
The NLRB calls this protected concerted activity. Under Section 8(a)(1), employers can't interfere with, restrain or coerce employees who exercise it. In practice, that means employers can't:
Fire, discipline or threaten employees for raising group concerns.
Ban employees from discussing their pay, benefits or employment terms with each other.
Maintain policies or send letters that would reasonably discourage employees from talking about their working conditions.
Which employees are protected?
The NLRB's jurisdiction reaches businesses with fairly modest revenue, so even small companies are usually covered. The protections apply to rank-and-file employees, including new hires and employees on probation. They don't apply to supervisors, managers or independent contractors. Growing companies often miss this risk entirely, as we explain in when multi-site employers outgrow their HR structure and 12 signs your HR doesn't understand labor law.
What counts as protected concerted activity?
Activity is concerted when employees act together, or when one employee acts on behalf of others, such as bringing a group complaint to management or trying to get coworkers to act together. A purely personal gripe usually isn't protected. In this case, the employee kept saying "we," her coworkers agreed with her and her team leader passed the complaints up the chain. That was more than enough.
This case also shows how long the risk can last. The employee was fired in 2022, and the Board's decision came in 2026, with backpay growing the whole time.
6 Mistakes That Turn an Employee Complaint Into an NLRB Charge
None of these mistakes is unusual. Each one happens in companies every week, usually because a manager is frustrated and nobody with HR or legal training is involved before the decision is made.
Treating a group complaint as an attitude problem
The managers saw an unhappy new hire who didn't do her "due diligence." The law saw an employee speaking up for coworkers about training and pay. When an employee says "we," or coworkers back up the complaint, assume it may be protected.
How to avoid it: Train managers to recognize group complaints and to respond to the substance, not the person. Bring experienced HR in before any discipline that follows a complaint. Our manager training and coaching covers exactly this.
Telling a complaining employee to quit
"If you're not happy here, maybe this isn't the job for you" is one of the most common things managers say. Said in response to group complaints, it can be an unlawful threat.
How to avoid it: Give managers better language. "Thanks for raising this. Let me look into it and get back to you" is lawful and usually defuses the situation. If managers keep improvising in these moments, see why weak managers are costing you money.
Using HIPAA or confidentiality to shut down a conversation about pay
HIPAA protects patients' health information. It doesn't cover employment records an employer holds in its role as an employer (45 C.F.R. § 160.103), and it certainly doesn't stop an employee from sharing her own employment agreement. Healthcare employers in particular tend to invoke HIPAA reflexively. Here, it turned a manager's comment into a separate violation. (For more on pay secrecy, see our post on pay equity and pay transparency.)
How to avoid it: Limit confidentiality rules to genuinely confidential business and patient information, and say plainly that they don't restrict employees from discussing their own pay and working conditions. Our HR compliance audit checklist covers handbook policies like these.
Firing hours after the complaint
Timing is often the strongest evidence of retaliation. A firing the same evening as a heated meeting about group complaints is very hard to defend.
How to avoid it: Build in a pause. No termination should happen the same day as a conflict, and none should happen without a review of what the employee recently complained about. For another example of a firing that followed protected activity too closely, see fired on her first day back from FMLA leave.
Termination reasons that keep changing
The first notice cited performance and negligence. The second added Medicaid fraud, insubordination and falsification. When reasons multiply after the fact, judges conclude the real reason is the one the employer isn't stating. Here, the judge also found documents had been fabricated, which destroyed the managers' credibility.
How to avoid it: Decide the real reason before the termination meeting, confirm it is documented as it happened, and use the same reason in every notice, letter and response to an agency. If a charge has already been filed, start with what to do first when a former employee files a retaliation claim.
Threatening a departing employee with a defamation suit can be unlawful
A broad warning in an exit letter that the company may sue over "defamatory" statements chills employees from talking about their working conditions, including to government agencies.
How to avoid it: Have exit letters, separation agreements and non-disparagement clauses reviewed for NLRA compliance before using them. And if a departing employee says "I'll sue," read what employers should do when an employee threatens to sue before reacting.
Are training repayment agreements legal?
The Board didn't rule on whether the $2,500 repayment provision itself was lawful, but agreements like this deserve a second look. State wage payment laws limit deductions from pay, federal law limits deductions that would drop pay below minimum wage, and federal and state regulators have scrutinized these "stay or pay" provisions. They also tend to generate exactly the kind of group complaints that led to this case.
About to terminate an employee who recently complained? Get a second set of eyes first. CHRO's Employee Relations Support Program includes termination reviews that catch timing problems, inconsistent reasons and missing documentation before they become an NLRB charge. Schedule a confidential consultation.
How CHRO Helps Employers Avoid NLRB Retaliation Claims
CHRO, LLC is an attorney-led fractional HR firm. Through our Employee Relations Support Program and Outsourced CHRO Program, we help small and mid-size employers:
Review terminations before they happen, checking for recent complaints, consistent reasons and documentation that will hold up.
Train managers to recognize protected concerted activity and respond to complaints without creating a threat.
Audit handbooks and confidentiality rules for NLRA compliance, including rules on discussing pay.
Review exit letters, separation agreements and repayment agreements before they become evidence.
Investigate workplace complaints so issues are addressed on the merits.
If managers in your organization are making termination decisions without a second set of eyes, see our post on what happens when light-duty restrictions are ignored for another example of how a quick decision becomes a lawsuit.
Frequently Asked Questions About Protected Concerted Activity
What is protected concerted activity?
Protected concerted activity is when two or more employees act together, or one employee acts on behalf of coworkers, to improve pay, benefits or working conditions. Examples include complaining as a group to management, discussing pay with coworkers, circulating a petition or posting on social media about shared workplace concerns. Section 7 of the National Labor Relations Act protects it in both union and nonunion workplaces.
Does the National Labor Relations Act apply to employers without a union?
Yes. The NLRA covers most private employers whether or not any employees are represented by a union. Section 7 protects employees who act together to improve their pay or working conditions, and the NLRB regularly enforces those rights in nonunion workplaces. Small businesses are usually covered because the NLRB's revenue thresholds are modest.
Can one employee's complaint be protected concerted activity?
Yes, if the employee is speaking for coworkers, bringing a group concern to management or trying to get coworkers to act together. A complaint that only concerns the employee personally usually isn't protected. Signs that a complaint is concerted include the employee saying "we," coworkers agreeing with it or the complaint coming up at a group meeting.
Can I fire a probationary employee who complains?
Not because of protected complaints. Being on probation or employed at will doesn't remove NLRA protection. You can still let a probationary employee go for legitimate, documented performance reasons, but the timing and the documentation need to show the decision wasn't triggered by the complaint.
Is it illegal to tell an employee to quit if they're unhappy?
It can be. When a manager says it in response to complaints about working conditions, the NLRB may treat it as an implied threat that complaining will lead to firing. Context and wording matter. It's safer to train managers to acknowledge the concern and follow up.
Can employers stop employees from discussing their pay or employment agreements?
Generally no. Under the NLRA, most nonsupervisory employees have the right to discuss their wages, benefits and terms of employment with each other and with outside parties such as the NLRB. Many states have pay transparency laws that add similar protections. HR and payroll staff who handle other employees' pay information can still be required to keep that information confidential.
Does HIPAA prevent an employee from sharing employment documents?
No. HIPAA protects health information held by health plans, healthcare providers and their business associates. Employment records an employer keeps in its role as an employer aren't covered, and HIPAA doesn't restrict employees from sharing their own pay or employment terms. Patient information is different and can still be protected.
What happens if the NLRB finds an employer violated the NLRA?
The NLRB can order reinstatement, backpay with interest, compensation for other direct financial losses, removal of the discipline from the employee's file, and a notice posted to employees stating the employer broke the law. The NLRB doesn't award punitive damages, but cases can take years, and backpay keeps growing while they're pending.
The Bottom Line on Firing Employees Who Complain
A two-month employee complained about training and a repayment agreement, a manager told her to leave if she was unhappy, and a small agency fired her that night. Four years later, the NLRB ordered her reinstated with backpay. No union was ever involved.
The NLRA protects employees in nonunion workplaces who speak up together about pay and working conditions. Employers that respond with threats, gag orders or a same-day firing are taking a risk that can last for years. The fix is usually simple: a manager who knows what not to say, policies that don't overreach and a second look at every termination before it happens.
CHRO, LLC helps employers in Pennsylvania, New Jersey, Delaware, Maryland, New York and nationwide handle employee complaints, discipline and terminations the right way. Schedule a confidential consultation to learn how our Employee Relations Support Program or Outsourced CHRO Program can protect your business, or start with our free Workplace Diagnostic Questionnaire.
About CHRO, LLC
CHRO, LLC is an attorney-led fractional HR firm serving employers in Pennsylvania, New Jersey, Delaware, Maryland, New York and nationwide. Through our Employee Relations Support Program and Outsourced CHRO Program, we help small and mid-size employers handle employee complaints, discipline and terminations the right way: training managers to recognize protected activity, investigating complaints, auditing handbooks and confidentiality rules for labor law compliance, and reviewing terminations before a decision becomes a retaliation claim or an NLRB charge.
The biggest inclusion risk is rarely a formal program. It’s a manager calling one employee “abrasive” for what earns another praise. Part 3 of our DEI series covers stereotypes, CROWN Act hair protections, DEI training, ERGs and retaliation.