By:  Jonathan K. Driggs, Attorney at Law

One of your managers walks into your office visibly upset.  “I just found out that my employee ‘flamed’ me on Facebook,” he said.  “She called me all sorts of derogatory names, spread a bunch of lies about me, and encouraged other employees to get me fired.  This is defamation, I’m going to fire that <blankity-blankity-blank>.”

While it is easy to empathize with this manager and his frustrations regarding the actions of his employee, cooler heads need to prevail before any actions are taken.  Back in 2010, the National Labor Relations Board (NLRB) issued the first of a string of controversial decisions holding that certain uses of social media by employees can be viewed as “concerted activities” under the National Labor Relations Act (NLRA), thus protecting the employee from adverse actions taken by the employer. 

What is a concerted activity under the NLRA?  First of all, the NLRA is the main federal law protecting the right of employees to unionize.  But many employers don’t realize the NLRA goes beyond just unionizing issues—employees also have the right to engage in concerted activities regarding their “mutual aid or protection,” which can include a whole lot of different work-related issues.  A concerted activity is when employees act in “concert with each other” (e.g., employees acting together, or an employee speaking on behalf of a group, or a “call to action” by one employee to others).  So, if an employee approaches a manager and says, “I’ve passed this petition around to my coworkers about having to work too much overtime,” the employee has engaged in a concerted activity.

The NLRB has now applied this rule to employee use of social media, including outside of work.  It is important to understand that not all comments made by employees on social media are protected.  To be protected, the following general conditions (broadly defined) must be met:

  • The comments relate to the terms and conditions of the workplace;
  • The employee appears to be acting with or on behalf of other employees.

Generally speaking, employees are not protected by the NLRA when they engage in “individual griping” (rather than interacting with or on behalf of other employees), or denigrate products or customers, or disclose intellectual property of employers or others.  However, it is important to note that since this is a new development, NLRB decisions are not always consistent, nor have the courts had the opportunity to rule on NLRB decisions.  It will likely be some time before this relatively new development in the law settles down into more concrete principles.

In next month’s article, we’ll discuss some of the NLRB’s decisions to get a better sense for what types of employee social media use are protected… and trust me on this, prepare yourselves to be a bit shocked and surprised with NLRB’s reasoning.   In the meantime, keep an eye out for me on Facebook as I flame my boss (woops, that’s me!)

This article should not be construed as legal advice.  Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.  Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.


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