A Bipartisan Board Sends a Clear Message to Tech Employers: Section 7 Protections Apply in Silicon Valley, Too
On September 16, 2026, the NLRB, in a 3-0 published decision, held that Snowflake, a large California tech company, violated the Act when it terminated the employment of one of its software engineers. See Snowflake, Inc., 375 NLRB No. 39 (2026). The Board found that the employee had engaged in protected concerted activity when he complained about a new coding procedure at a group meeting. The NLRB ordered the company to offer the employee full reinstatement and to make him whole for lost earnings, benefits (which may include stock options), and all direct or foreseeable pecuniary harms resulting from his unlawful termination.
Background
The employee originally joined Snowflake in 2019 through an acquisition; he was a co-founder of the target entity and the company hired him as a senior director of engineering when they integrated. There were some issues with his performance in that management role, and he transitioned to a non-supervisory “independent contributor” position on August 3, 2020. Separately, around this time, the company introduced a new “API Change Policy” that established a code-review approval process. A number of the engineers took issue with the new policy.
Four days after the employee transitioned to the “independent contributor” role, at an August 7, 2020 company meeting attended by roughly 25 staff members—including multiple supervisors and managers—the employee raised four concerns that he said his coworkers had discussed with him: (1) the policy’s scope was unclear as to which code changes it covered; (2) having just two individuals serve as approvers could lead to biased reviews; (3) vague standards could result in lowered evaluations and bonuses for engineers who inadvertently failed to comply; and (4) requiring approval from already-overburdened senior personnel could slow the pace of work. The employee used the term “we,” implying that he was speaking on behalf of himself and others. The employee used no threats or profanity. Other engineers echoed similar concerns during the meeting.
After the meeting, there were a couple other instances where the employee pushed back against a company initiative. Ultimately, about two months after the August 7 meeting, management decided to terminate his employment because it determined that he was difficult to work with and disruptive, among other reasons. When the supervisor met with him, the supervisor allegedly said that it was “due to you creating a hostile work environment by soliciting help from your colleagues to retain your job.” The company disputed that this was part of the reason for his termination.
The Board’s Decision
The Board found that the General Counsel established a strong prima facie case under the Wright Line framework, the test that the NLRB applies in cases involving a “mixed-motive” adverse action. The Board concluded that the employee’s comments during the August 7 meeting constituted protected concerted activity under Section 7 of the Act because he complained on behalf of a group of employees and the complaints related to the terms and conditions of their employment. The Board also found that there was evidence that the August 7 comments were a basis for his discharge. This evidence included emails between high-level supervisors and an HR memo citing the employee’s comments as a reason for the separation. The Board reasoned that, even though he had previously received critical feedback about his performance, it was not until he engaged in the protected activity that the company decided to terminate his employment.
Notably, the case was decided unanimously by Chairman Murphy (R) and Members Mayer (R) and Prouty (D). This case shows that while the Board has started to recalibrate certain doctrines adopted during the prior Biden administration, it will still protect what it considers core rights to engage in concerted activity. In other words, this decision reaffirms that the right of employees to band together and bring group complaints to management’s attention is considered a foundational principle of the Act. Employers should not assume that a Board composed of a majority of Republican appointees will rule in favor of the employer in every case.
What This Means for the Tech Industry
Silicon Valley has long prided itself on a culture of open debate, rigorous discussion, and meritocracy. And yet, this decision illustrates how engagement in the kind of vocal pushback that is often encouraged in technical settings can constitute federally protected speech. Managers, particularly those who come from small or rapid-growth start-ups, may not recognize when this speech crosses from mere business disagreement into protected concerted activity.
In this case, for example, the Board rejected the company’s characterization of its API Change Policy as a “purely business/entrepreneurial decision” outside the scope of the Act. The Board found that the policy directly affected working conditions, carried implied penalties for noncompliance, and was therefore a term and condition of employment subject to Section 7 protections. By raising shared concerns about the policy and its potential effects on employees’ terms and conditions of employment, the employee was exercising his rights under the Act.
It is also worth taking note of the pivotal distinction between the employee’s status as an employee when the conduct occurred as opposed to a supervisor/manager. In this case, the employee who filed the charge had originally been a co-founder of the entity that Snowflake acquired; he went from co-founder, to supervisor, to employee, and it was as an employee that his activity was protected. (The Act only protects concerted activity by non-supervisory employees.)
These types of internal hierarchy changes are not uncommon when big companies acquire smaller ones. But, in this case, it led to an interesting dynamic, where there was an individual whom others may have still viewed as an authority figure, but who was no longer a member of management. These types of dynamics are important to keep in mind during post-acquisition integrations.
Final Takeaways
This case serves as a reminder that employers need to tread carefully when employees engage in conduct that could be protected under the NLRA.
Here are some key takeaways:
1. Ensure that your managers and HR team can recognize when an employee’s conduct may constitute protected activity. This right applies regardless of whether a union is involved, and can sometimes be difficult to identify.
2. Be careful if you are focusing on form versus substance. An employee’s right to engage in protected concerted activity typically overrides the form in which the employee communicates their opinion. This means that employees can use an aggressive tone and even profanity to communicate; if it falls under the umbrella of protected conduct, then taking adverse action can violate the Act.
3. When legitimate performance issues arise, document those concerns independently and contemporaneously. Vague references to interpersonal issues and poor teamwork may not be specific enough to defend against an allegation of retaliation (under the Act or other statutes). Employers should ensure that any adverse action is based on legitimate business justifications.
Remember that Section 7 of the Act protects all employees—not just those in traditional blue-collar or unionized settings. As the tech industry grapples with workforce concerns ranging from return-to-office mandates to AI deployment and performance evaluation metrics, employers need to stay apprised of the local, state, and federal laws that apply.
This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship.