What is the National Labor Relations Act?
The National Labor Relations Act (NLRA) expressly gives employees the right to self-organize, form, join, or assist labor organizations, bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
An employer who fires, suspends, or otherwise penalizes an employee for taking part in protected group activity is liable under the Act
An employer who fires, suspends, or otherwise penalizes an employee for taking part in protected group activity is liable under the Act
Does the NLRA consider activity on social media "concerted activity"?
Regardless of whether an employee is represented by a union, Section 7 of the Act protects an employee’s right to come together with coworkers to improve their working conditions--including when they come together online via social media websites like Facebook, Instagram, Snapchat, and others.
Not only can a social media post be concerted activity, but so too can a comment or a “like.”
However, not all social media activity is protected by the NLRA. To get the Act’s protection, your statement must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.
Not only can a social media post be concerted activity, but so too can a comment or a “like.”
However, not all social media activity is protected by the NLRA. To get the Act’s protection, your statement must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.
What type of social media activity is not protected by the NLRA?
Statements that are egregiously offensive or knowingly and deliberately false are not protected.
Public disparagements of the employer’s products or services without relating those complaints to any labor controversy are similarly not protected, nor are individual complaints about some aspect of work.
That is not to say that individual employees cannot engage in protected concerted activity.
A single employee may engage in concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Public disparagements of the employer’s products or services without relating those complaints to any labor controversy are similarly not protected, nor are individual complaints about some aspect of work.
That is not to say that individual employees cannot engage in protected concerted activity.
A single employee may engage in concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
What constitutes a statement so egregious that it loses the Act’s protection depends on many factors and is subject to a balancing test between the employee’s right to engage in concerted activity and the employer’s right to maintain order, respect, and a workplace free from discrimination.
For example, the Board has found the following language not too egregious or abusive:
For example, the Board has found the following language not too egregious or abusive:
“Bob is such a NASTY MOTHER F***ER don’t know how to talk to people! ! ! ! ! ! F**k his mother and his entire fu**ing family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !
National Labor Relations Board v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017) (profanities omitted).
In agreeing with the Board, the Second Circuit reasoned that, although the employee’s message was “dominated by vulgar attacks,” the subject matter of the message included workplace concerns that was made in the midst of employer hostility toward employees’ union activities.
Thus, this “outburst” was “not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment.” Also of importance, the employer consistently tolerated profanity among its workers, and the outburst was not in the immediate presence of customers or disruptive to a work event.
Thus, this “outburst” was “not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment.” Also of importance, the employer consistently tolerated profanity among its workers, and the outburst was not in the immediate presence of customers or disruptive to a work event.
Even where an employee does not directly disparage the employer’s products or services, if the employee insults the employer’s customers, the Board will find the statement similarly disloyal and thus unprotected.
The Board recently found the below language disloyal:
The Board recently found the below language disloyal:
"This is a repost from Trader Joe’s employees because I agree 100: Just because we are open doesn’t mean we are here for you to spend your time BROWSING around. We are designated as an ESSENTIAL SERVICE. We are not here for you because you have nothing else to do. We are not here because you feel like getting out of the house for a while. We are in a STATE OF EMERGENCY. This is NOT A VACATION! Every customer who walks in our doors PUTS US AT RISK. We really don’t want to be here, but we realize that we are needed. YOU don’t see how many times a day we wash and sanitize our hands to try to keep ourselves safe. YOU don’t see our upset co-workers in the break room struggling to keep their composure. YOU don’t see our spouses who worry about us every minute we are at work and who are our strength when we get home. We have our jobs to do and we realize the IMPORTANCE OF OUR JOB TO YOU. The LEAST you can do is come in with a sense of purpose, get what you need, and get yourselves home."
NLRB GC Memo re Trader Joe’s, No. 16-CA-261558 (Apr. 28, 2021).
The Board found the statement so “disloyal, reckless, or maliciously untrue” that it lost the Act’s protection.
Therefore, while employees generally have great latitude in expressing joint concerns relating to the terms and conditions of their employment, they must be careful not to make statements that could lose the Act’s protection.
Are you facing discrimination at work because of something you posted on social media?
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