Many employers must walk a fine line in the face of the social media explosion. On the one hand, they cannot and do not want to stifle employee expression about working conditions protected under the National Labor Relations Act (NLRA). On the other, however, they need to protect their proprietary interests and provide a safe and reasonable workplace for their employees. The National Labor Relations Board continues to be increasingly "interested" in whether employers have stepped over the NLRA line to improperly fire or threaten employees for social media use.

The fine line that employers must walk separates mere personal gripes about the workplace that generally can result in employer discipline from NLRA-protected "concerted activity" that cannot be the subject of even threatened discipline. Concerted activity occurs when: (1) union or union-free employees get together to discuss wages, hours, or other working conditions; (2) one or more employees threaten or suggest group action; or (3) one or more employees voice concerns—on a safety or comparable topic—that impact or concern a larger group of fellow employees.

The Board's Acting General Counsel continues to make good on his earlier warnings that he and the Board intended to microscope and distinguish protected concerted social media activity from personal gripes.

Following is an illustration of the difference. Recently, on Facebook, an employee commented about an altercation with her supervisor, made a derogatory comment about the employer, and then "told" the employer to "FIRE ME ... Make my day...." Two hours later, after receiving no comments from others, the employee stated she felt deserted, and there was "[n]o one to make me laugh." Finally, another employee responded that "it's getting bad there, it's just annoying as hell." The employer learned about her Facebook posts and fired the complaining employee over her Facebook posts.

The Acting General Counsel concluded that the employee had not engaged in protected concerted activity. According to him, rather than sharing concerns about working conditions generally, her comments merely expressed an individual complaint. Notably, there was no indication that other employees interpreted her postings as an expression of shared concerns (suggestive of concerted activity), because no one had responded to her for hours. And even then, the lone comment — about "it's getting bad" and being "annoying as hell"– was ambiguous and unrelated to the concerns expressed in the fired employee's earlier comments. Concluding, the GC found nothing "inherently concerted" in the employee's comments because they did not address wages, hours, and working conditions involving mutual workplace concerns.

This opinion is particularly significant in light of recent GC Memos, complaints issued, and Board opinions that, all too often, protected social media comments as protected concerted activity. "Protected" examples include a co-worker's opinion that group work performance was substandard and derogatory statements about a supervisor during gripes among employees about working late hours in a bad neighborhood.  This most recent opinion provides some guidance on the kind of online statements that likely are unprotected.

Originally published on Forbes.com.

This article is presented for informational purposes only and is not intended to constitute legal advice.