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

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.

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.
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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:

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.
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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: