If it hasn’t happened to your company yet, it will. One of your employees may post a disparaging remark on-line about the company, company practices or a member of management. The employee may even use profanity in the posting. However, before you react and fire the employee you should know that, depending on the nature of the posting, the employee may be engaging in what the National Labor Relations Board (“NLRB”) considers “protected activity.”

Section 7 of the National Labor Relations Act (the “Act”), applies to both union and non-unionized work forces. It states: “Employees shall have 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.” An employer’s retaliatory conduct, such as interfering with or disciplining an employee because of that employee’s protected concerted activity violates these employee rights guaranteed by the NLRA and is illegal under 29 USC §158(a)1.