Social Media and the N.L.R.A.

The National Labor Relations Act ("N.L.R.A.") protects employees from adverse actions of their employees under certain circumstances. 29 U.S.C. § 157 gives employees the right to

self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

Right of Employees as to Organization, Collective Bargaining, Etc., 29 U.S.C. § 157 (2015).

In other words, 29 U.S.C. § 157 allows employees to engage in activities for the purposes of improving work conditions or voicing disapproval towards their employers. However, in order to qualify for protection under the N.L.R.A., an employee must engage in concerted activities for the purposes of collective bargaining or engage in concerted activities for the purpose of mutual aid or protection. N.L.R.B. v. Holling Press, Inc., 343 N.L.R.B. 37, 38 (2004). If an employee is found to meet these requirements, the employee will be protected from “unfair labor practices” by an employer, which includes any interference, restraint, or coercion by employers regarding the employee’s 29 U.S.C. § 157 rights. Unfair Labor Practices, 29 U.S.C. § 158 (2015). Essentially, an employer can not discharge an employee if the employee’s actions were protected by the N.L.R.A.N.L.R.B. v. Timekeeping Sys., 323 N.L.R.B. 33, 35 (1997). In this way, employees who engage in concerted activities for the purposes of collective bargaining or for the purpose of mutual aid or protection are protected from being fired by their employers.

Though this statute might seem rather straightforward, improving technology has muddied the boundaries of what activities are protected or not. Since the N.L.R.A. was created in 1947, it could not have anticipated the internet nor the ease with which employees can severely damage an employer's reputation by posting disparaging comments on social media websites. Normally, making public statements which disparage an employer without an attempt to engage in collective bargaining with an employer or an attempt to engage with other employees in concerted action would not be protected by the N.L.R.A. Thus, courts could see social media posts which merely complain about workplace conditions as being unprotected activity, which would result in employers being able to terminate the employees who made such posts. However, I contend that courts should allow employees to make disparaging statements on their social media accounts even if they are not concerted or for the purpose of collective bargaining as long as their social media accounts are private and only accessible by their "friends".

In order to determine whether disparaging social media posts should be allowed, we should look to the purpose of the N.L.R.A. The N.L.R.A.'s goal is to afford employees the freedom to express themselves and complain about their work conditions without fear of adverse action from their employer. However, these freedoms must be delicately balanced with employers' interest in not wanting bad publicity for their company and employers' being able to decide who to employ. It is to protect these employer that the concerted and collective bargaining requirements were created. Private social media posts are only able to be viewed by a rather small amount of people, as most employees do not have millions of "friends" who are able to view their posts. As such, employers do not run as large a risk of negative exposure as they would if employees made disparaging comments in a public forum or on a public website. Because the risk of disparaging comments on a private social media post negatively affecting an employer are so much lower than public statements, employees should be given much more freedom in determining what they are able to write in their private social media posts.

Since employees are allowed to complain about their employment conditions to their friends in a private conversation, they should also be able to complain about their employment conditions to their friends in a private social media post. Allowing employers to terminate employees because of actions that employees have taken on their own private sites risks giving employers too much control over the private life of their employees. So, if a future case were to arise where an employee made disparaging comments about his employer in a private post, courts should refine the law according to the technological changes that have made communication so much more expansive. Since it is now much easier to communicate to a broad amount of people privately, the law should reflect these newfound opportunities and allow employees to fully participate in private social media communications without fear of repercussion.