Labor: Social media posts as protected concerted activity under the NLRA

3 cases that should give employers pause when considering employee social media posts

The explosion of the Internet has provided companies with a new set of employment-related issues to worry about: harassment via Facebook, trade secret theft by blog and anti-employer rants on YouTube have all become regular topics at employment law seminars. Just as employers are learning how to deal with these problems, a new issue is coming to the fore: whether certain Internet postings may constitute protected, concerted activity under the National Labor Relations Act (NLRA).

Under the NLRA, employees have a right to “engage in concerted activity for the purpose of collective bargaining or for other mutual aid and protection.” To be protected, the activity must be undertaken by two or more employees, or by one employee with the authority of others, and it must relate to the terms and conditions of employment. Activity that is otherwise protected may lose its protection if it is overly disruptive and “opprobrious.”

3. In a third case, the Office of General Counsel addressed, at the NLRB’s request, the termination of a paramedic who had posted comments on Facebook criticizing her supervisor and calling him names. The Office of General Counsel concluded, without any analysis, that the posts were protected under the NLRA.

In each of these cases, the tribunal also rejected the argument that the activities lost their protection because they were too opprobrious. In the BMW case, the NLRB ruled that the sarcastic nature of the anti-hot dog posts “did not exceed permissible bounds.” In the social services case, the NLRB ruled that the posts did not constitute “outbursts” or harassment as defined by company policy. Finally, in the paramedics’ case, the Office of the General Counsel said that the posts were not disruptive because they occurred after hours, and that mere name-calling did not cause activity to lose its protection.

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Andrew Tanick

Andy Tanick is a partner at national labor and employment firm Ford & Harrison LLP. Andy has over 20 years of experience handling employment cases...

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