Understandably, an employer’s knee jerk reaction to discovering an employee has trashed the company on social media is to terminate the employee. Warning: employers must first closely examine the content of the employee’s “trash talk” to determine whether it can be interpreted as “concerted activity” under the National Labor Relations Act (“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 representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
There are a few questions you need to ask yourself in order to determine whether a post constitutes the type of concerted activity that is protected under the NLRA. Under Section 7, concerted activity generally requires two or more employees acting together to improve wages or working conditions. So, first ask yourself whether the intent of the social media post is to get a response from a co-worker or get co-workers involved in acting together. If so, the post may be considered concerted activity. If the post does not invite a response, it may not be concerted activity.
Next, ask yourself whether the improvement sought -- whether in pay, hours, safety, workload or other terms of employment -- benefits more than just the employee who posted. If it does, then it is likely concerted activity. If the post consists solely of a personal gripe, it is likely not protected under the NLRA.
Even a vulgarity filled post may constitute concerted activity in certain circumstances, but note that reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets may cause otherwise concerted activity to lose its statutory protection.
Takeaway: Carefully consider the “trash talk” in an employee’s social media post—it may be legally protected, concerted activity.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.