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What Exactly is “Protected Concerted Activity” under the NLRA?
Published on 8/24/2015 12:00:00 AM
employee absence out of office 

How it applies to social media

With its rising popularity and nearly universal acceptance, it’s likely that many of your employees frequent social networking sites like Facebook and Twitter. And while they may use these sites to talk about their favorite TV series or to share photos of their summer vacation, what if they post or tweet something damaging against your company, your services or your customers?

This very situation is creating a unique compliance challenge for employers, where they’re left to interpret whether employees are engaging in “protected concerted activity” under the National Labor Relations Act (NLRA) – and, in turn, whether they’re entitled to discipline or fire employees for negative conduct. To better understand this situation, we need to start with language from the NLRA.

Section 7 of the NLRA states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representations of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

In its intent to give employees the right to act together to address work conditions, the NLRA can put businesses and the National Labor Relations Board – the federal agency that enforces the NLRA – at odds. On the one side of the issue are businesses wanting to protect their interests and provide a fair and reasonable workplace for their employees. On the other is the NLRB taking an increased interest in employers that have overstepped their legal bounds by wrongly reprimanding or firing employees for NLRA-covered actions.

First, it’s important to understand context.

While it’s easy to recognize the application of NLRA-protected activity as it pertains to water cooler talk or a group of employees chatting in the lunchroom, it should be noted that it extends to work-related conversations on social media, too.

Next, there’s the consideration of intent.

Generally speaking, an activity is concerted if it involves more than one employee and it aims to improve wages and other working conditions. As such, both non-union and union employees who act together on workplace issues are protected from employer retaliation.

So when is an employee’s negative post or tweet grounds for discipline and when is it off-limits under the NLRA?

Based on the framework of activity that relates to a larger group of employees, an employee who rails against his boss in a Facebook post is not protected under the NLRA. However, an employee discussing the lack of pay raises with a handful of coworkers is more likely engaged in protected concerted activity. The NLRB, although hard-hitting in its scrutiny of social media policies and the parameters they place on employee conduct, recognizes that “personal gripes” or malicious comments are not appropriate.

The bottom line:

The NLRA gives employees the right to act together to improve their working conditions, with or without a union. If an employee is fired, suspended or otherwise punished for participating in protected group activity (online or off), the NLRB will act on behalf of those rights.

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Shanna Wall
Hosted by Shanna Wall,
Compliance Attorney, ComplyRight
This webinar will cover the recommended actions (or inactions) and risks involved for businesses, in light of the uncertain future of the new FLSA rule.
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