Disciplining Employees for Social Media Posts Checklist

A Checklist of issues for employers to consider when determining whether they may lawfully discipline or terminate a unionized or nonunionized employee for objectionable social media postings. Factors include whether the postings constitute protected concerted activity under the National Labor Relations Act (NLRA), as well as consideration of state laws protecting lawful off-duty conduct. The Checklist is jurisdiction-neutral.

This Checklist references NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

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