July 24, 2026
Employee’s Firing for Social Media Post Violates NLRA
We were just talking about this during the June webcast! Now, here’s another illustrative case. On a non-supervisory employee’s second day of employment, he found an in-house software game for employees. But in order to access it, you had to identify your sex as only female employees could play. The next day he reported to HR that he was being excluded “on the basis of gender identity.” HR rep replied that he could play if he was accompanied by someone who identified as female.
He filed a charge with the EEOC but did not file a lawsuit. More than 6 months later he accessed a Slack channel available to employees. There he found messages promoting a mentoring program of the Women in Tech Alliance (WITA) that was also open only to women. He also found feminist or sexist anti-male jokes that he considered offensive. He reported these to his boss and his boss’ boss explaining he believed this sexism showed, “a hostile culture has been cultivated.”
The company’s law firm began an investigation and interviewed the employee. An HR rep sent the employee a message instructing him to, “…maintain confidentiality and avoid naming specific employees or discussing details related to the ongoing investigation.”
The employee then posted an 11-page article on LinkedIn about his observations of discrimination and urged other employees to file a charge with the EEOC. The Senior HR Director told the employee to “remove any false, derogatory, disparaging, and/or defamatory statements from his post by the next day.” OOPS? The next day, the employee was fired. OOPS?
So, the employee filed a claim with NLRB alleging violations of the NLRA, then the employer filed a claim against EE for making false, materially misleading, and defamatory remarks about the employer in violation of his employment agreement.
The NLRA’s Administrative Law Judge found the employer violated the NLRA on several counts.
1. Was the employee engaged in protected, concerted activity? Yes. “The conduct of a single employee in enlisting the support of fellow employees for their mutual aid and protection is as much concerted activity as ordinary group activity.”
2. If so, did he lose that protection by engaging in unlawful conduct? No. “The employer failed to establish that the employee’s statements were maliciously false or even that it had a good faith belief that the employee made false factual statements.”
3. Did the warning that HR sent during the investigation violate the NLRA? Yes. The employer “had no legitimate concerns that required confidentiality into its investigation of [the employee’s] complaints. This investigation was not one in which there was a danger of Respondent getting incorrect information if participants in the investigation communicated with each other. Thus, the employer interfered with and coerced EE in disseminating his views about the company.
4. Did the employer engage in unlawful retaliation when it filed its lawsuit against the employee? Yes. The employer produced no evidence of false statements made by the employee, and later abandoned the lawsuit.
As a result, the ALJ directed the employer to:
• Offer reinstatement
• Make him whole for any loss of earnings and other benefits, with interest for back pay, (compounded daily)
• Pay for his search-for-work and interim employment expenses
• Pay for pecuniary harms, adverse tax consequence for any lump sum backpay awards…and more.
Take aways? The NLRA is just one of many federal (state, and local) that laws prohibit retaliation against an employee for exercising legally protected rights. The NLRA adds an additional protection and, like FMLA, prohibits interference with an employee engaging in legally protected rights. So, when you think about taking an adverse employment action against an employee who publicly disparages your company, look for words or phrases in the communication like, “Let’s…” or “We should…” in the public statement. Those may suggest concerted, protected activity. Talk to your company’s legal counsel for guidance.
Did you miss the June webcast, “Social Media and Its Workplace Implications“? You can access the archived recording and handout here. Still provides 1.25 credits pre-approved by SHRM/HRCI.
