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 a ruling announced on June 26, 2014, the US Supreme Court in NLRB v. Noel Canning affirmed the ruling of the Court of Appeals for the District of Columbia Circuit that the recess appointments to the NLRB were invalid. The Supreme Court's ruling could effectively invalidate hundreds of NLRB decisions decided by invalidly appointed recess appointees.This Checklist is in the process of being reviewed and updated in light of the Supreme Court's ruling.