Employee Facebook Comments as Protected Activity

Employee Facebook Comments as Protected Activity

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As the National Labor Relations Board's (NLRB) August 2011 report on social networking and the first NLRB decision in this area make clear, employee social media activity can be "protected concerted activity" under the NLRA, even if nonunion employees are using social media sites to criticize their employers.

Section 7 of the NLRA gives employees "the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." "Employees" under the NLRA include nearly any employee except "supervisors" (a narrowly defined term). Thus, nonsupervisory employees—including many "exempt" salaried employees—have the right under the NLRA to engage in "concerted" activities for the purpose of their mutual aid or protection. Concerted activities lose their protection under the act, however, if sufficiently opprobrious or, under an alternate test, if disloyal, reckless, or maliciously untrue.

In August the NLRB's Acting General Counsel's Office issued a report addressing its recent determinations as to employer responses to social media activity. To date, only one of the NLRB cases described in the report has been decided. In September the administrative law judge in Hispanics United of Buffalo Inc. held that a nonprofit social services provider unlawfully terminated five employees in response to their Facebook posts.
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