NLRB: Fintech Firm Unlawfully Fired Employee for Anti-DEI Posts

A National Labor Relations Board (NLRB) administrative law judge has ruled that Apex Fintech Solutions unlawfully fired an employee who publicly criticized the company’s diversity, equity, and inclusion (DEI) initiatives on LinkedIn, finding that the posts constituted protected activity under federal labor law. The decision highlights that disputes over DEI programs can also implicate the National Labor Relations Act (NLRA) when employees discuss workplace concerns or seek to engage co-workers in addressing employment conditions.

The case centers on data engineer John Richardson, who objected to several company DEI initiatives, including a networking program limited to individuals identifying as female and a women-only mentoring program. Richardson also criticized comments allegedly made during an internal DEI panel discussion and published multiple LinkedIn posts accusing Apex of fostering discriminatory practices. According to the decision, the posts encouraged coworkers to raise similar concerns and pursue their own complaints regarding workplace policies.

Apex terminated Richardson in September 2023 after he refused to remove the posts, citing alleged violations of the company’s nondisparagement provisions. The company subsequently filed a defamation lawsuit, alleging the posts were false and defamatory, but later abandoned the case.

Administrative Law Judge Arthur Amchan concluded that Richardson’s social media activity was protected concerted activity under Section 7 of the NLRA because the posts “sought to inform the public about matters that affected employees’ working conditions.” The NLRA protects employees’ rights to act together to improve workplace conditions, whether or not they are represented by a union.

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The judge also rejected Apex’s argument that Richardson’s statements fell outside the act’s protection because they were false. Under longstanding NLRB precedent, employees may lose the act’s protections if they knowingly or maliciously make false statements. However, Amchan found that Apex failed to prove Richardson’s comments were “maliciously false.”

In his opinion, the judge wrote that Apex could not justify Richardson’s termination “on the basis of his expressed negative opinions about the company’s DEI policies or its managers, or his characterization of the atmosphere at Apex Fintech.” He further noted that Richardson did not lose the NLRA’s protection merely because his comments may have exaggerated managers’ remarks.

The decision also found that Apex’s defamation lawsuit constituted unlawful retaliation because it was filed in response to Richardson’s protected concerted activity. In addition, the judge determined that portions of the company’s confidentiality, nondisparagement, noncompetition, and nonsolicitation agreements were unlawfully overbroad because employees could reasonably interpret them as restricting discussions about workplace concerns or potential legal violations.

As a remedy, Amchan ordered Apex to reinstate Richardson with back pay and interest, compensate him for certain job-search and tax-related expenses, remove references to the discharge from his personnel file, and rescind the unlawful workplace rules. The judge also ordered the company to cease filing baseless lawsuits against employees for engaging in protected concerted activity. The decision may be appealed to the five-member NLRB.

The ruling comes amid continued scrutiny of workplace DEI initiatives. Under the Trump administration, employers have faced increasing legal challenges to programs that limit participation based on protected characteristics such as race or sex. At the same time, the NLRB has continued to emphasize that employees — both unionized and nonunion — have broad rights under Section 7 to discuss wages, working conditions, workplace policies, and potential discrimination with one another.

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Although the judge did not determine whether Apex’s DEI programs themselves violated employment discrimination laws, the decision underscores that employees’ criticism of workplace policies, including DEI initiatives, may remain protected under the NLRA when it is connected to workplace conditions and undertaken for the purpose of engaging or informing fellow employees. It also serves as a reminder for employers to carefully review confidentiality, nondisparagement, and related workplace policies to ensure they do not unlawfully chill employees’ protected communications.