We have worked with many clients who are upset about something an employee has posted on social media or elsewhere that may be viewed as negative about the company and/or its practices. These have to be very carefully evaluated to determine if the statements could be concerted protected activity. A recent case demonstrates the potential liability for not doing that assessment.
An employee at Apex Fintech Solutions had issues with statements made at a company DEI meeting and posted on LinkedIn a complaint about the company’s “culture of discrimination” against White men. The company also attempted to limit his complaints to “proper channels”. When he refused to remove “false” and “defamatory” statements without the company specifying what those were, he was fired.
The NLRA (National Labor Relations Act) administrative law judge found a violation of the NLRA’s concerted protected activity. The NLRA protects a variety of actions deemed “concerted activity,” including talking with co-workers about wages, benefits, or working conditions; circulating a petition asking for better hours; joining co-workers to talk to an employer; and more.
“A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”, according to NLRB’s (National Labor Relations Board) website. Apex had to reinstate the employee with backpay and retro benefits – and then deal effectively with an employee in the workplace who had successfully challenged the company.
These assessments can be costly, so while our HR team appreciates the anger and frustration some posts may cause, we must evaluate these carefully from the context of protected activity. This is often a situation where we will recommend review by an employment law attorney be done if our client wants to terminate employment.
THE TOXIC EMPLOYEE’S IMPACT
We know from our experience that a single toxic employee can cause serious issues in an organization. So new research confirming that isn’t a surprise. While not every complainer is toxic, repeated negativity can create lower morale, reduced collaboration, and a workplace where problems are expressed but not resolved.
Common indicators include:
- Repeated negative commentary without attempts to resolve issues.
- Public criticism of colleagues or departments.
- Sarcasm or dismissive remarks that influence team tone.
- Avoidance of direct conversations with those involved.
If managers leave these behaviors unaddressed, they can normalize disengagement and undermine trust. Our HR Generalists can help them evaluate the situation and determine the best approach, that includes identifying whether there is a legitimate underlying concern that should be addressed, helping the employee(s) understand more appropriate ways of communicating concerns, and effectively addressing performance issues. This will also help the manager be more effective and build trust with their employees.
SHOULD EMPLOYERS CONTINUE TO COLLECT EEO DATA?
As the EEOC continues its move to discontinue EEO-1 reporting for applicable companies, it raises questions about whether companies can or should continue gathering that information. This is a good overview of the considerations for that Considerations for Employers Regarding the Collection of Demographic Data on Employees and Applicants | Littler . We recommend that any decision be made in consultation with the company’s employment law counsel.
