Social Media Posts May Constitute Protected “Concerted Activity.”

Increased interconnectivity across the social media world has clouded the clarity regarding an employee’s right to post information critical of his or her employer or coworkers and the subsequent ability of the employer to institute policies to restrict publication of that information. Under Section 7 of the National Labor Relations Act (NLRA) (which emphasizes the right of employees to engage in “concerted activity”—when an employee acts “with or on the authority of other employees and not solely by and on behalf of the employee him/herself”), the National Relations Labor Board (NLRB) issued a report on the lawfulness of discharging employees based on a violation of the employer’s social media policies. According to the NLRB, if multiple employees were involved in the discussion, and the discussion focused on a term or condition of employment, such conversation might be permissible and protected under the NLRA. Specifically, the particular language used by the employee in the social media post is scrutinized to determine whether that individual sought to initiate or induce group action. Ultimately, there is no “one-size-fits-all” approach as to whether social media comments may be construed as simply unprotected “venting” or as protected “concerted activity” considering that the NLRB’s determinations have at times proven inconsistent and unpredictable. It may be beneficial to review previous cases on the issue for guidance.

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