The NLRB’s Division of Advice recently issued memoranda in several different cases, showing that not all activity by employees on social media sites constitute protected activity. These reports show that the Labor Board, like many employers, struggle with what is “protected concerted activity” – and thus protected from any employer discipline – and what are mere individual gripes – and most likely not protected.
The NLRB’s attempt to provide guidance in these memoranda does show the Labor Board’s adoption of a more realistic view of what is protected activity on social media than some had feared (and more realistic than some critics had charged). In short, “protected concerted activity” even on social media must show more than an individual employee’s private complaint or gripe about her/his employer. The employee must be expressing group complaints (acting “with or on the authority of” other employees) and generally must be interacting with employees in such expression. Forbes.com posted a good article illustrating the differences. In one instance, the NLRB even examined whether a particular employee’s Facebook wall included ‘friends’ who were co-workers.
Employers also should remember that the National Labor Relations Act protects essentially all employees (not just union employees) from any form of discipline for engaging in “protected concerted activity.”
Employers also should:
- Remain cautious about disciplining any employee or employees about off-duty social media activity; a wise employer will seek counsel before implementing any discipline for such conduct;
- Evaluate their social media policies in light of these pronouncements from the NLRB’s Division of Advice.