- 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.
- Partner
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 ...
The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.