The National Labor Relations Board’s new general counsel, the top prosecutor who oversees all regional offices, had previously signaled an intention to expand the types of employee conduct that might qualify as protected, concerted activity.
A recent advice memorandum from the general counsel’s Division of Advice doubles down on that approach. The Division of Advice memo recommended that Region 10 in Georgia file a complaint over an employee’s termination that had followed workplace complaints raised on Facebook. In doing so, the Division of Advice pushed for the same expanded definition of protected, concerted activity.
At issue was an employee of a medical practice who posted a meme on Facebook that blamed bad management for employee attrition issues. Two other employees commented on the post, one with a supportive message and the other with a supportive emoticon. The next day, the employee who was the original poster was terminated for alleged patient complaints.
Generally, to be protected under Section 7 of the National Labor Relations Act, employee conduct must be both “concerted” and “for the purpose of . . . mutual aid or protection.” The manner in which an employee’s actions are linked to those of their coworkers determines whether the employee’s activity is concerted.
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