- An employer may discipline an employee based on social media activity as long as the social media activity does not involve conduct protected by the National Labor Relations Act (NLRA).
- To be protected by the NLRA an employees activity must be concerted.
- To be concerted means the employees social media post or other activity is made with or on the authority of other employees, not solely by and behalf of the employee.
- The requirement of concerted activity is no different on social media than in other contexts to which the NLRB has applied this principle.
- The NLRB will tolerate a fair degree of distasteful conduct by employees in a social media context, just as it does in other settings. In one of the cases analyzed, employees swearing and sarcasm in Facebook posts did not, according to the GC, result in loss of protection under the NLRA.
Mark Mathison advises and represents a wide range of employers, including corporations, nonprofits, and educational organizations, on labor and employment law issues in the workplace. Mark’s practice has a significant focus ...
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