Excerpted from a Barnes and Thornburg LLP blog by Thomas C. Payne

The National Labor Relations Board’s new general counsel, the top prosecutor who oversees all offices, signaled an intention to expand the types of employee conduct that might qualify as protected activity.

A recent memorandum from the counsel’s Division of Advice doubles down on the approach. The memo recommended that Region 10 in Georgia file a complaint over an employee’s termination that had followed workplace complaints raised on the social media website Facebook.

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.

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 which an employee’s actions are linked to those of their coworkers determines whether the employee’s activity is concerted.

The Division of Advice opined that the Facebook post was protected because it complained of a workplace issue and “elicited support from coworkers over these management practices and employee attrition—issues that had been topics of concern for the employees.”

The Division of Advice took the position that the post was “inherently concerted activity,” an argument that purports to expand protected activity by finding that even activity not calling for group action or “mutual aid or protection” can be protected if it discusses “vital categories of workplace life such as wages, scheduling, or job security.”

The Division of Advice took the position that even if unprotected, the employer’s action in terminating the employee was still unlawful as a “‘preemptive strike’ against future protected concerted activity.” In short, the employer violated the act by terminating the employee so other employees would not engage in similar activity.

The advice memorandum shows how far general counsel is willing to go to advocate for protected, concerted activity. Employers should consider this decision when taking disciplinary action where conduct is arguably protected, due to the current approach taken by the general counsel.

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