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non-union setting must be compliant with the National Labor Relations Act, which gives private employees the right to engage in “concerted activities” for the purposes of collective bargaining.
Examples of concerted activities include an employee talking with co- workers about working conditions, circulating a petition about improving working conditions, or joining with co- workers to talk directly to their employ- er. Regardless of whether the concerted activity occurs in person or over social media, an employer cannot interfere with such an activity taking place dur- ing or after work hours. Beyond this concerted-activity issue, the concepts of ‘at-will employment,’ ‘good cause’ for termination, or other common law or contractual issues may be relevant.
State-specific Protection for Lawful Off-duty Activity
Some states have laws that protect lawful off-duty activities of both public and private employees. In Colorado, an airport-operations supervisor was terminated for posts on her Face- book page regarding her support for preserving the ‘Rebels’ mascot of her high school, particularly one post that depicted the mascot with the Confed- erate flag.
A Colorado court vacated her ter- mination of employment because it violated a Colorado statute making it unlawful to terminate an employee for engaging in a lawful activity outside of
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Legal Challenges
As mentioned above, one state has already challenged the Biden vaccina- tion plan in a legal forum. The state of Arizona filed a lawsuit last month asking a federal court in Arizona to declare the vaccine mandates uncon- stitutional. The lawsuit contends that the Biden administration does not have authority under the U.S. Consti- tution to require vaccines.
Similar challenges to past emergen- cy OSHA standards have had mixed results. The legal standard is high: OSHA must demonstrate that workers are in “grave danger” to justify issu- ing emergency temporary standards. With global COVID-19 deaths recently hitting 5 million, it seems to these authors that OSHA will be able to sat- isfy the ‘grave danger’ standard. v
Marylou Fabbo and John Gannon are attorneys at the firm Skoler, Abbott
& Presser, P.C., in Springfield, who
both specialize in employment law and regularly counsel employers on compliance with state and federal law; (413) 737-4753; mfabbo@skoler-abbott. com; [email protected]
“In enforcing a social- work. California, Louisiana, New York, employers must assess the effects of
 media policy, employers must assess the effects
of an employee’s social- media post on a workplace, including its impact on the ability of employees to work with one another.”
and North Dakota have similar laws prohibiting employers from taking adverse employment actions based on lawful off-duty activities. Massachu- setts has not enacted such a law.
Advice for Employers
Employers may choose to adopt social-media policies that address off- duty conduct. Anti-harassment and anti-discrimination policies should also address off-duty social-media activity. Any social-media policies should be enforced reliably to ensure the consistent treatment of employees.
In enforcing a social-media policy,
an employee’s social-media post on a workplace, including its impact on the ability of employees to work with one another. Social-media policies can be a helpful way for employers to set clear expectations regarding the standard of online conduct they expect of employ- ees. The absence of such a policy can make the results of an employee’s chal- lenge to an employer’s disciplinary action for inappropriate social-media posts much more unpredictable. v
Kevin Maynard is an employment law and litigation partner at Bulkley Richardson; (413) 272-6200.
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