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When Does Criticism Become Concerted Action?

Employers have always had to deal delicately with criticism and insubordination by employees. On one hand, it is important for employees to feel they have an outlet for identifying problems in the company and suggesting ways that it can improve. However, when such criticism is pervasive and unconstructive, it can destroy morale, decrease productivity and undermine managerial authority. What’s more, with the rise of social media, employers have increasingly had to confront employees who air their grievances publicly on the Internet rather than through appropriate internal channels. While most employers would agree this type of conduct must be quickly addressed, some legal developments should provide a moment of pause.

Federal law gives employees the right to engage in concerted action to push for improvements in the terms and conditions of their employment. Typically, this takes place through organized unions and collective bargaining. In recent years, however, the National Labor Relations Board (NLRB) began examining a number of cases in which employees were disciplined or discharged for posting comments about work conditions on Facebook or other social media forums. The Board ultimately determined that employers could not categorically prohibit employees from discussing work conditions on social media and that disciplining employees for doing so could, in some cases, run afoul of their rights to concerted action under the National Labor Relations Act (NLRA):

  • When posts concern wages, working conditions or other employment issues
  • When multiple employees participate in the posting
  • When the posts are not merely isolated gripes but actually relate to a plan for action among employees

The NLRB and its regional offices most often side with employers on this issue. However, it is still important to be aware that employee comments made on social media may be protected action under certain circumstances. An experienced DC labor and employment lawyer can help businesses draft employee policies that reflect these nuances and can provide advice relating to specific instances of this type of conduct.

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