While it is well known that the National Labor Relations Board governs issues involving unions and unionized employers, it also protects employees’ rights to engage in “protected concerted activities,” defined as two or more employees conferring or taking action for their mutual aid or protection regarding terms and conditions of employment. It does not matter if the employees are unionized. If an employer disciplines or discharges an employee for engaging in such activities, it may be committing an unfair labor practice under the National Labor Relations Act, and may be required to reinstate the employee and pay for lost wages.
Throughout 2011, the NLRB’s General Counsel increasingly has used its power to issue and prosecute unfair labor practice complaints against employers that have disciplined employees for Facebook, Twitter or other social media posts that the employers considered detrimental to their business. The General Counsel also has issued complaints against employers for promulgating social media policies that it believed was overbroad because they tended to prohibit employees from engaging in protected activity.
