Compliance Stuff

Employers may be concerned about employee social media activity, even if it is done outside of work and focused on personal messages. Posts with controversial or inflammatory messages are often seen by coworkers, customers, and business partners and can draw unwanted attention to employers, particularly amid the current polarized political climate in the United States. Quick Hits Employers may want to carefully consider several key questions before taking disciplinary action against employees for social media activity , particularly in light of potential legal protections and perception of fairness.  Clear and consistently enforced employee policies are important to avoid claims of discrimination or retaliation stemming from social media incidents. If employee social media activity has come to management’s attention, here are seven questions to consider asking before taking disciplinary action over a post, reel, or the like . 1.  Does the jurisdiction where an employer is loc...

At a Glance The Third Circuit affirmed the NLRB’s application of a totality of the evidence test and overruling of  Alstate Maintenance LLC  in finding that a single employee’s conduct was protected concerted activity (PCA). While the Third Circuit found the PCA to be a motivating factor in the employee’s dismissal, the court determined that the administrative law judge and Board failed to analyze certain evidence bearing on the employer’s affirmative defense that it would have taken the same action absent the employee’s PCA. On June 23, 2025, in  Miller Plastic Products Inc. v. National Labor Relations Board , the Third Circuit ruled that substantial evidence supported the Board’s determination that a single employee’s conduct was protected concerted activity (PCA) and a motivating factor for his termination . In doing so, the court affirmed the Biden Board’s overruling of  Alstate Maintenance LLC  and expansion of the analysis of whether a single employee’s co...