Protected Activity Laws Various federal and state laws provide that employers may not take adverse action against applicants or employees based on certain legally protected activities. Accordingly, when online information about employees or applicants reveals protected activities by an individual, employers need to take care to ensure that they do not consider or act on such information in making its hiring or employment decisions. The following is a summary of some of the laws that establish protected activities. Protected Concerted Activity Under the National Labor Relations Act (“NLRA”). Several prohibitions found in the federal labor law – NLRA – apply to employers interacting with applicants or employees through social media or other online searches. For example, Section 7 of the NLRA protects non-management employees’ right to engage in concerted activity for mutual aid and protection and applies whether or not an employee is in a union. Section 7’s rights are broad, encompassing outright union organizing but also actions of two or more employees, such as just discussing compensation or complaining about other terms and conditions of employment. Section 8(a)(1) of the NLRA further provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7.” The NLRA prohibits employers from taking adverse action against an applicant or employee due to the individual’s protected Section 7 activities, including the individual’s online activities. The National Labor Relations Board (“NLRB” or the “Board”), which enforces the NLRA, has sided with employees who were terminated for off-the-clock comments made on Facebook, finding that the employees’ comments were protected speech under the NLRA. In these and other “Facebook firing” cases, the Board has considered whether an employee is engaging in protected concerted activity or just airing his or her own individual gripe, which is not protected. One way to tell the difference is to consider what happens after the initial post. If other employees express support or share the concern, and the conversation turns to “what should we
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