Chapter 3: Protected Concerted Activity
One of the least-understood areas surrounding social media law is the issue of what constitutes protected concerted activity. An employee cannot be fired for engaging in concerted activity. It’s as simple as that. However, what’s not so simple is the definition of concerted activity.
The NLRB defines it as follows:
“An individual employee’s conduct is concerted when he or she acts ‘with or on the authority of other employees,’ when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings ‘truly group complaints to the attention of management.’ Such activity is concerted even if it involves only a speaker and a listener, ‘for such activity is an indispensable preliminary step to employee self organization.’ On the other hand, comments made ‘solely by and on behalf of the employee himself’ are not concerted. Comments must look toward group action; ‘mere griping’ is not protected.”
More specifically, the NLRB protects employees from retaliation by an employer for discussing wages, hours or working conditions. These NLRA protections apply whether or not a company has a union, because they relate to “organizing” or pre-union activities. Therefore, a social media policy cannot prohibit an employee from posting negative comments about what it is like to work at a company or comments that are critical of the bosses, the customers or working conditions. A social media policy that restricts what people say can bring about NLRB fines and lawsuits.