Believe it or not, the National Labor Relations Act (“NLRA“)* , protects your employees’ postings on social media. This means that any posting that the National Labor Relations Board (“NLRB”)** deems “protected concerted activity” is off limits when it comes to discipline and termination.
You may not be able to legally fire your employee for their post on social media.
So, what’s “protected concerted activity”? The NLRB defines it on their website, but in a nutshell – it is activity that could reasonably be argued has the intent of improving working conditions of multiple employees. Unfortunately, the NLRB has consistently been pretty liberal in their interpretations on this and employers face a significant disadvantage when it comes to protecting their company from employees’ negative posts on the various social media platforms.
Basically, if your employee is complaining about things like wages, hours, safety, or other employment-related issues, their posts may be protected, even if they use profanity and even if they make your company and/or your management team (or you!) look really bad. However, if your employee disparages your customers, shares confidential information or are otherwise violating company policies (like posting themselves doing inappropriate things to your product) you can [probably] take action.
Think you’ve got this one down – know when you can fire your employee for their post and when you just need to count to 10 and move on?
Even if you feel pretty good about your interpretation of protected concerted activity, you should still proceed with caution.
Here are the critical takeaways you need to remember:
- Enforcement of this section of the NLRA (sec 7) is very fact-based. The tiniest detail can make or break your case. For that reason, you should always get a second opinion prior to taking action – whether it be your trusted HR Advisor or labor attorney – or both!
- You should have your HR Advisor and/or attorney review your social media policy to check for compliance! Many violations of this law don’t even result from a termination, but from a policy the NLRB deems overly broad and thus, non-compliant with the law.
Questions about this law or have a similar employee issue you’d love an opinion about? Ask us!
Don’t Worry, We’ve Got This.
*The NLRA is a law designed largely to protect union workers, but also covers certain private sector labor and management practices.
**The NLRB is the federal agency in charge of enforcing the NLRA.
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