What Social Media Activity is Not Protected Under Federal Law?

    January 15, 2015

    An employee’s social media activity is not protected under the NLRA if it does not seek to involve other employees, does not relate to the shared terms and conditions of employment, or is an activity that is otherwise carried out in a reckless or malicious manner.

    Social media activity that is not protected could include:

    • Communications unrelated to the terms and conditions of employment;
    • Protests over the quality of services provided by an employer that are only tangentially related to employee terms and conditions of employment;
    • Expressions of an individual gripe; and
    • Activity that does not seek to involve other employees in issues related to employment.

    While this activity is not protected under the NLRA, other common employee social media is, in fact, protected by federal law. For example, an employee who sends a Facebook message to her colleagues about the employer’s working conditions may be afforded the same protection as a group of employees who discuss corporate wage issues during the workplace lunch hour. Other protected activity could include:

    • Protest of supervisory activities;
    • Statements relating to employee staffing levels implicating working conditions;
    • Communications to the public related to an ongoing labor dispute;
    • Exchanges with reporters about wages and other terms of employment; or
    • Complaints and criticism about a supervisor’s attitude and performance.

    If an employer disciplines or fires an employee for engaging in protected activity, or institutes a workplace rule or policy that would prohibit employees from engaging in such activity, the employer can face serious programs, such as a lawsuit, unfair labor charge, repaying the employees lost wages, and paying their attorneys fees and costs. So this begs the question:

    Should You Fire over Facebook?

    Many companies have disciplined their employees over their social media posts or instituted policies prohibiting certain online activities. But are these employment practices and policies legal? In my next webinar, I will teach you about important labor and employment law issues in the context of social media in the workplace and how to manage employee social media use.

    January 22 | 12:00-1:30 est | $150 Live or OnDemand

    1.5 Hours of CLE Credits Approved in Florida, Louisiana, South Carolina, and Nevada

    Approval Pending in California & Georgia

    Register Now for "Should You Fire over Facebook"Social media law attorney, author, professor, and keynote speaker Ethan Wall will:

    • Identify protected employee speech under the NLRA
    • Distinguish the lawfulness of discipline for employee social media use
    • Analyze legal from illegal social media policies and rules
    • Teach you how to draft lawful social media policies
    • Set forth techniques to maximize compliance with federal labor law


    Email: webinars@socialmedialawandorder.com

    Call: (407)484-5100

    Contact Us Today for a Free Consultation