December 03, 2018 Articles

Employee Email and Social Media: What Is Protected Concerted Activity under the Law?

Employers must be careful before they discipline employees for comments they post on social media or through email streams, even when those comments contain vulgar and shocking language.

By Jennifer Holly

Many nonunion employers mistakenly think that they need not be concerned with the National Labor Relations Act (NLRA) because they believe that the act only applies to union organization and bargaining. However, within the last decade or so, the National Labor Relations Board (NLRB) has regained focus on the nonunionized workplace and found new life in the world of email and social media communications.

The NLRA’s reach is much broader than many employers realize: it applies to all employers, unionized or not. Most relevant to email communications and social media, section 7 of the act protects an employee’s right to engage in “concerted activities,” which occur “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” “Concerted activities” is a much broader concept than “union activities.” The NLRA’s protection of concerted activities covers many different activities, including employee discussions about pay, work conditions, and even safety concerns. Consequently, the NLRB has construed the terms concerted and protected very broadly to include any activity aimed at affecting employee interests. Section 8 of the act further provides that an employer commits an “unfair labor practice” if the employer tries to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

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