Throughout the digital workplace, email, social media and text message communications frequently yield the “smoking gun” evidence that results in employment claims against employers. Many employers seek to limit their exposure by adopting broadly written technology policies designed to keep employees from improperly using email and social media to make disparaging or discriminatory remarks. So, when an employee posts derogatory comments about the company and his boss on social media sites, prompting other employees to voice similar complaints, the company has the right to discipline the employees, right? Guess again!

Contrary to popular belief, private sector employees do not have a constitutional right to “free speech” in the workplace. Many employees do, however, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted activities for the purpose of … mutual aid or protection.” While the NLRA does not protect actions taken solely on an employee’s own behalf, it does protect actions taken with or on behalf of at least one other employee, or on the authority of other employees, when those activities relate to the terms and conditions of their employment. Although some individuals are excluded from protection, including supervisors, managerial employees and independent contractors, most private sector employees are covered by the NLRA, even if they are not represented by a union.

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