More NLRB Rulings Illustrate Broad Scope Of "Concerted Activity" Protection


In a recent alert, we reported on two recent cases before the National Labor Relations Board (NLRB) involving a provision of the National Labor Relations Act (the Act) that protects employees’ rights to engage in “concerted activity.” Under this provision of the Act, “concerted activity” includes, among other things, two or more employees discussing wages, hours, or working conditions. The Act prohibits employers from disciplining or discriminating against employees who engage in such discussions. This “concerted activity” protection extends to employees whether or not they are unionized.

In one of the cases discussed in our earlier alert, the employer allegedly fired an employee for her disparaging Facebook posts about a supervisor, to which several of her Facebook “friends” who were also co-workers added their comments. The employer fired the employee for violating a policy in its company handbook prohibiting employees from making disparaging or defamatory comments when discussing the company or their superiors. The NLRB filed a complaint against the employer asserting that its policies and disciplinary actions were an unlawful infringement on the Act’s “concerted activity” protection because the Facebook communications between the fired employee and her co-workers were discussions about working conditions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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