What Employers Should Know
The National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter. Employees who act together on workplace issues – by, for example, meeting with a manager to lobby for better benefits or having a group discussion about the company’s safety record – are protected from employer retaliation.
What is Concerted Activity?
An activity is concerted only if it involves more than one employee’s concerns. An employee who complains about their own performance evaluation is not taking concerted action. But an employee who complains that the company’s performance evaluation system unfairly penalizes employees who speak up in safety meetings after consulting with or on behalf of coworkers, is engaged in concerted action. As the National Labor Relations Board (NLRB) puts it, “personal gripes” are not protected. Even if employees are clearly acting in a concerted way, they won’t be protected if they cross the line from constructive behavior to malicious or reckless actions.
As an example of what not to do: The former employee handbook of fast-food chain Wendy’s included a rule requiring authorization before workers could make comments on social media about Wendy’s business, policies or employees. As part of an agreement with the NLRB, Wendy’s social media policy now prohibits comments on “trade secrets and proprietary company information.”
Impact of Social Media
In 2010, the NLRB began receiving charges related to employer social media policies and to specific instances of discipline for Facebook postings. Following investigations, the agency found reasonable cause to believe that some policies and disciplinary actions violated federal labor law, and the NLRB Office of General Counsel issued complaints against employers alleging unlawful conduct. In other cases, investigations found that the communications were not protected and so disciplinary actions did not violate the Act.
One example is when an employee posted photos of co-workers on Facebook that got them fired for violating employee handbook rules, including one against “disloyalty.” The NLRB investigated and ruled that the employer violated federal labor law by imposing “overly broad” rules on the employee that could “chill” workers from talking about their working conditions, which are protected under the law.
The NLRB has shown great interest in expanding these protections for online employee posts and comments. Here are two examples:
- An employee was having a dispute with a coworker about job performance, staffing levels, and how well the employer was serving its clients. In a Facebook post, the employee asked coworkers for their input on the issues, and several responded in online comments. They were all fired because of the online conversation. The NLRB found that they were engaged in protected concerted activity, even though some of the comments were sarcastic or included profanity, because they were discussing working conditions in advance of a meeting with management.
- While on a lunch break following a dispute with a supervisor, an employee updated their Facebook status to include an expletive and the name of the employer’s home improvement chain. Several coworkers “liked” that status. The employee later posted that the employer didn’t appreciate its employees; no coworkers responded to this online. The employee was fired for the posts. The NLRB found that the employee was not engaged in concerted activity because they were neither acting on behalf of other employees nor seeking their input or support to turn the complaint into a group action. Instead, the NLRB found she was airing a “personal gripe,” which was not protected.
NLRB Expansions of Protected Activity
The NLRB has recently expanded the definition of protected activity in the workplace. This change aims to provide broader protections for employees engaging in concerted activities under the National Labor Relations Act (NLRA).
Expanded Definition
- The NLRB has adopted a more inclusive test for what constitutes “protected concerted activity,” allowing for greater employee advocacy, including for non-employees.
- This shift reflects a return to previous precedents, enhancing employee rights to use strong language during labor disputes.
Implications for Employers
- Employers must be aware of their obligations regarding employee interactions and the potential consequences of penalizing employees for engaging in protected activities.
- The NLRB will actively intervene if employees face retaliation for participating in these activities.
Non-compete and Non-solicitation Agreements
On June 13, 2024, an administrative law judge (ALJ) for the National Labor Relations Board (NLRB) ruled that overly broad non-compete and non-solicitation provisions in an employment agreement violated an employee’s labor rights in what could be the first NLRB ruling to find such provisions unlawful under the National Labor Relations Act (NLRA).
- An NLRB judge found that an employer’s non-compete and non-solicitation provisions in an employment agreement were unlawful for employees who were not supervisors or managers because they could chill the employees from engaging in activities protected by the NLRA.
- The ruling applied the NLRB’s most recent framework for evaluating work rules from the perspective of an employee who is economically dependent on the employer.
- The ruling provides an opportunity for scrutiny of non-compete and non-solicitation agreements by the NLRB.
Summing Up My Views on the Expanded Protections for Employees
The NLRB has been slow to the party in regulating employee postings online. This is why there have been so many cases that test the rules. The posting next week on my “Ethics Sage” blog will exam examples of rulings under the NLRA and its effect on employees.
Briefly, many cases have shown that employees are often protected if they are discussing employer policies or practices that apply broadly. Protection is also more likely if employees are having an online discussion to prepare to discuss issues with management. The more personal the post (for example, calling a supervisor an a- – – hole), the less likely the employee is protected. On the other hand, even if a post includes expletives and name-calling, it might still be protected if it is a complaint, responded to by other employees, about practices employees see as unfair or unwarranted.
The NLRB decisions are having some positive effects in preventing employers from stifling free speech in the name of loyalty to one’s employer. While I do not approve of negative postings about one’s co-workers or employer, I do support one’s Constitutional right to post photos and make stupid comments. online.
Blog posted by Steven Mintz, PhD, Professor Emeritus from Cal Poly San Luis Obispo, on May 21, 2026. Visit Steve’s website to learn more about his activities.