When applying section 7 to activity on the Internet, courts should adopt a test that would protect the rights of employees to discuss problems that arise in the workplace while allowing the employer to respond to those problems and control its public image, when possible. In Eastex, Inc. v. NLRB, the Supreme Court refused to “delineate precisely the boundaries of the ‘mutual aid or protection’ clause,” reasoning that the task should be one “for the Board to perform in the first instance as it considers the wide variety of cases that come before it.”
In that case, the Court suggested that, “even when concerted activity comes within the scope of the mutual aid or protection clause, the forms such activity permissibly may take well depend on the object of the activity.” In this excerpt, the Court suggested that the Board could use its substantial discretion to find that the purpose of the Act would be best effectuated in certain circumstances by considering the form of the concerted activity. In social networking cases, such a test would balance the employer 's interest in putting forth a positive online image with the employee 's right to engage in concerted activity to
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It is not an uncommon expectation for employers, regardless of their market cap, to have active social media accounts spanning from one to four different websites. The Board has only just begun to address the many issues raised by this new mode of communication. Thus far, however, it has failed to match the speed of the evolution of social networks. During the past several years, the Board consistently found that employees engaged in protected activity when they posted negative statements about their employers on social media websites. In doing so, the board failed to acknowledge the important aspects of social media that makes it wholly distinct from the traditional workplace