NLRB Seeks to Expand Protected Concerted Activity Definition for Social Media Posts

Every week I’m asked how the NLRB deals with employees and social media. Depending on the week, my answer may change.

One thing remains constant: disciplining or terminating employees for their social media activity is incredibly fact-specific and the stakes are so high (reinstatement, back pay, expungement of discipline) that a careful review of the facts and the current state of the law is paramount.

For example, an employee of a medical practice posted a meme to Facebook that blamed bad management for employee attrition. Two employees commented on the post: one with a supportive emoji, the other with a supportive message.

The next day, the medical practice terminated the employee who posted the meme for alleged patient complaints.

The National Labor Relations Board Division of Advice – which is headed by the NLRB General Counsel – opined that the Facebook post was protected activity because it complained of workplace issues and “elicited support from coworkers over these management practices and employee attrition. Since these issues had been topics of concern for the employees, I can kinda see that.

What I don’t see is how the Division of Advice took the position that the post was also “inherently concerted activity.” This finding expands the definition of protected activity to include activity that does not call for group action or does not seek mutual aid or protection if it simply discusses “workplace life such as wages, scheduling, or job security.”

The Division of Advice also said that even if the Facebook post was not protected activity, the employer terminated the employee who posted the meme as a “preemptive strike” against future protected concerted activity.

I don’t agree with this, either. How can the employer violate the National Labor Relations Act by terminating an employee who did not engage in protected activity in an effort to stop other employees from also not engaging unprotected activity?

This shows how far the current NLRB General Counsel will go to advocate for a broader view of protected, concerted activity.

Both union and non-union employers should consider this decision when taking disciplinary action where conduct is arguably protected, concerted activity, due to the current activist approach of the General Counsel.

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