NLRB Advice Memo Signals Narrower View of Protected Political Activism

By Rachel Domash and R. Jason Patterson - Franczek P.C.

September 11, 2026

The NLRB Division of Advice recently issued a memorandum concluding that Microsoft lawfully discharged two employees who organized an on-campus protest related to the war in Gaza after they refused directives to relocate the event off company property. Although NLRB Advice Memoranda are not binding precedent, they often provide valuable insight into how the General Counsel’s office views emerging labor issues.

The key takeaway from the memorandum is that employee activism involving political or social issues is not necessarily protected by the National Labor Relations Act simply because it involves concerted activity. According to the Division, Section 7 protection requires a meaningful connection to employees’ interests as employees, such as wages, hours, workplace safety, discrimination, or other terms and conditions of employment.

In this case, the Division concluded that the protest’s objectives were to pressure Microsoft to sever business ties with the Israeli government, raise awareness regarding conditions in Gaza, and support humanitarian relief efforts. While organizers linked the protest to an earlier petition that included concerns regarding employee speech and safety, the Division found that connection too attenuated to establish that improving working conditions was an objective of the protest itself.

The memorandum is particularly noteworthy because it distinguishes the Board’s 2024 Home Depot decision, which held that an employee’s display of a “BLM” message on a work apron was protected because it stemmed from employee concerns about workplace racial discrimination and therefore was connected to employees’ working conditions. By contrast, the Division concluded that the Microsoft protest was directed primarily at broader political and humanitarian objectives, rendering any connection to employees’ terms and conditions of employment too attenuated. The Advice Memorandum further notes that General Counsel Crystal Carey disagrees with Home Depot and intends to urge the Board to overturn the decision in an appropriate case. Moreover, the Eighth Circuit vacated the Board’s order in Home Depot in 2025, holding that the employer had demonstrated special circumstances sufficient to enforce its dress-code policy.

Employer Takeaways

The memorandum suggests the current General Counsel may take a narrower view of when employee protests concerning political, social, or geopolitical issues qualify for protection under the NLRA. Employers should continue to exercise caution before disciplining employees engaged in advocacy or protest activity, particularly where employees can articulate a connection between their activity and workplace conditions.

As employee activism continues to intersect with workplace issues, employers should monitor developments closely. While this memorandum does not change existing law, it offers an important indication of how the General Counsel’s office may approach future cases involving workplace protests and political expression.

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