Determine Whether a Social Media Post Is Protected by the NLRA
- Employers must be aware that an employee's social media posting (Facebook, Twitter) may constitute protected activity under the National Labor Relations Act. Even though the employee's posting may be seen by all "friends" including non co-workers, the posting may constitute protected activity if it addresses a term or aspect of employment and is read by fellow employees on the social media site.
- If an employer permits employees to use social media sites on employer equipment and on employee property, it is likely the employer may not prohibit employees from using such sites to send pro-union messages.
- Employers may argue against the protected aspect of the social media posting by showing that it was malicious, reckless false or an individual complaint rather than a complaint on behalf of his fellow co-workers. As this is an ever-evolving issue, employers are advised to seek counsel as every posting will be unique and will require an appropriate response.