Technology: What employees say and do on social media can be used against them, right?

Distinguishing between protected and unprotected activity is not an easy task

You might think that there should be consequences if an employee bad mouths the company, calls their manager unscrupulous names, or posts embarrassing photographs or comments about the company on Facebook. You might also think that an employer would be well within their right to reprimand, discipline, suspend, or fire the employee for this type of social media content. You might even think that there is no way the law could provide employees with the right to unabashedly tweet about internal workplace disputes. But you might want to think again.

Certain employee social media activities are actually protected against employer retaliation in the United States. Generally speaking, the National Labor Relations Act (NLRA) provides that employee activity is legally protected when two or more employees act together to improve their terms and conditions of employment. These protected activities extend to online social media employee activity – even in circumstances where the employee comments about ongoing legal disputes and embarrassing workplace issues. Employers who take disciplinary actions against employees engaging in protected activities may be subject to fines, cease and desist orders or costly legal action. It is critical for employers to understand the distinction between protected and unprotected employee social media activity prior to disciplining or terminating employees for their online activity.

Contributing Author

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Heather Melick

Heather Melick is of counsel with Luper Neidenthal & Logan in Columbus, Ohio. She focuses on the areas of complex commercial litigation, appellate work, military...

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Contributing Author

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Ethan Wall

Ethan Wall is a social media law attorney, author, professor, and keynote speaker at Social Media Law and Order in Miami. Ethan co-authored “

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