No legal conclusion without visible support

Issue

Whether an employer may lawfully terminate an at-will employee for posting criticism of company leadership on social media, considering the interplay of at-will employment doctrine and potential protections under the National Labor Relations Act.

Rule

Under the at-will employment doctrine, an employer may terminate an employee for any reason not prohibited by law. However, Section 7 of the NLRA protects employees' right to engage in “concerted activities” for mutual aid or protection. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that public employee speech made pursuant to official duties is not protected by the First Amendment. The NLRB has extended protections to certain social media activity under Hispanics United of Buffalo, Inc., 359 NLRB 674 (2012).

Application

If the employee's social media post constitutes concerted activity — such as discussing workplace conditions with coworkers — the termination may violate the NLRA regardless of at-will status. Individual griping, however, is generally not protected.

Conclusion

The employer may terminate the employee under at-will doctrine unless the social media activity qualifies as protected concerted activity under the NLRA, in which case the termination would be an unfair labor practice.