Determine Whether Employee's Conduct Is Protected Under the National Labor Relations Act

Key Points

  • Employers must be aware that employees have the right to engage in "concerted activity for mutual aid or protection" to improve their wages, benefits and working conditions regardless of whether they belong to a union. Employers are prohibited from disciplining or terminating employees due to this activity.
  • In order to be protected activity, employees must work together in such activity. If an employee acts solely for himself or herself, the action is not concerted and thus, not protected. Note, however, that an employee who acts alone but advances the interest of a group of employees regarding a term of employment is protected under the National Labor Relations Act.
  • Employers must be extremely cautious when determining whether an employee's social media (Facebook, Twitter) post constitutes protected activity. Even though the employee's post may be seen by all "friends" including non co-workers, the post may constitute protected activity under the NLRA if it addresses a term or aspect of employment and is read by fellow employees on the social media site. Employers may argue against the protected aspect of the social media post by showing that it was malicious, reckless, false or an individual complaint rather than a complaint on behalf of fellow co-workers.

XpertHR Resources