When are employees’ disparaging comments on social media not protected by the NLRA?

For activity to be protected under the National Labor Relations Act (NLRA), employees must be discussing terms and conditions of employment, which might include wages or working conditions (management practices, policies, etc.). Protected activity also must be considered “concerted activity.” To qualify as concerted activity, a social media post must:

• Seek to initiate or induce coworkers to engage in group action,
• Include discussion among employees regarding terms and conditions of employment, or
• Be an outgrowth of prior employee meetings or attempts to initiate action with regard to terms and conditions of employment.

If an employee’s social media post doesn’t address terms and/or conditions of employment, or if it doesn’t qualify as concerted activity, it likely won’t be protected activity under the NLRA.