Are Employee Posts on Social Media Protected by Federal Labor Laws?

Social media has become an essential part of our daily lives. Whether it’s sharing photos of your vacation or staying updated with current events, social media platforms such as Facebook, Instagram, and Twitter it enables us to interact with the world like never before. However, sometimes, social media activity can also get you fired. It is not uncommon for an angry employee to post something negative about their job that results in termination, but are there any protections for what people can post?

Employees' Posts on Social Media May Be Protected Under Federal Law

The strongest form of protection regarding this topic is found in the rules established by the National Labor Relations Board (NLRB). Employees cannot be lawfully fired by participating in “protected concerted activity,” essentially allowing workers to criticize and discuss their employer in relation to pay, working conditions, employment policies, and decisions while communicating with fellow workers. This type of social media activity makes it legal for employees to join together and help improve their working conditions.

Who is Protected?

Employees are protected whether or not they are part of a union. Even in a non-union workplace, employees who band together on workplace issues are protected from retaliation by an employer. Social media posts cannot be used as justification to fire an employee when the termination is based on the employee having a protected class characteristic (i.e. race, religion, gender, sexual orientation, age, or disability).

What is "Concerted" Activity?

It is important to understand that an activity is considered “concerted” only if it involves more than one employee’s opinions. For instance, if a worker just vents on social media and doesn’t attempt to have a discussion about the issues with coworkers, this type of action doesn’t meet the criteria of protected concerted activity. On the other hand, if a worker made disparaging comments about an employer on social media and several coworkers joined in with their opinions, this example is considered protected concerted activity, even if the employee was denied union representation to assist in responding to a customer complaint.

Things To Keep in Mind

Protection is more likely to be given to employees who are discussing such issues online while preparing to speak about them with management. Keep in mind, the more personal the post, the less likely the workers will be protected. However, it might still be protected if the post is a complaint--responded to by other coworkers--regarding unfair or unwarranted practices seen by employees.

If you have been wrongfully terminated due to a post on social media, contact our Washington D.C. federal employment team at The Law Firm of John P. Mahoney, Esq., Attorneys at Law, PLLC today.