Determine Whether an Employee's Activity Is Protected Under the NLRA

Key Points

  • 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 protected concerted activity.
  • Employees must work together in an activity for it to be protected. If an employee is acting solely for himself or herself, the action is not concerted and not protected. However, 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 (NLRA).
  • An employee's social media posts on social media (e.g., Facebook or Twitter) may constitute protected activity under the NLRA if they address a term or aspect of employment and are read by fellow co-workers, even if the posts also may be seen by non-coworker "friends." An employer may argue against a social media post's protected status by showing that it was malicious, reckless, false or an individual complaint, rather than a complaint on behalf of fellow coworkers.

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