Consider this scenario: A supervisor contacts legal to report that an employee’s publicly viewable Facebook page complains about the company and calls the supervisor a “scumbag.” In considering the legality of imposing discipline, the in-house lawyer will likely ask questions such as: “Has the employee recently engaged in protected activity?” and “Do we evenhandedly monitor all employees’ Facebook pages, or did we learn about this conduct through a supervisor who only surveils the out-of-work conduct of particular employees?” If the company is unionized or in the midst of a union organizing campaign, the in-house lawyer also likely will consider whether the employee’s social media activity is protected by the National Labor Relations Act (NLRA).
Nonunion employers, however, often assume that the NLRA simply does not apply to them, at least until a union comes knocking at their door. Employers also often assume that, so long as they comply with antidiscrimination and retaliation laws, they are free to take action in response to employee social media activity. Both assumptions are wrong.
