A new NLRB ruling on social media misconduct makes it harder for employers to discipline employees for inappropriate behavior during protected concerted activities — even when the misconduct happens online.
Under the updated standard, employees who post profane, harassing, or inappropriate comments on social media are now more protected from disciplinary action than in the past.
What does the NLRB ruling mean for social media evidence?
The new NLRB ruling on social media misconduct affects how employers can respond to online behavior tied to protected activities.
In the past, the Wright Line test evaluated whether an employer’s discipline was motivated by an employee’s protected activity. Employers could argue they would have taken the same action regardless of NLRA protections, making it easier to justify discipline.
Now, decisions about employee misconduct use setting-specific standards instead of focusing only on employer motivation. This shift makes gathering and preserving social media evidence even more critical — especially when addressing misconduct online.
Accurate, defensible social media investigations help document behavior in context and support legal decision-making under the new NLRA standards.
How will social media posts be evaluated under the new NLRB ruling?
Employee posts will now be evaluated using a “totality of circumstances” test.
This means investigators must consider all relevant context surrounding the post — not just the post itself. In cases involving social media, a public comment will be evaluated alongside other online activity and open-source information.
Social media investigations play a major role in helping employers and counsel collect evidence that is accurate, defensible, and legally compliant under the new standards.
What does this mean for social media and web investigations?
Because the totality of circumstances matters, collecting and preserving open-source information quickly and ethically is critical.
To comply with federal rules of evidence, firms should use third-party web discovery services to locate and preserve online content discreetly. Acting before the subject alters or deletes evidence is key.
SMI Aware combines expert analysts and proprietary technology to search over 500 platforms and web sources. Our ethically and federally compliant process ensures that collected evidence is admissible in court. We deliver a comprehensive, searchable portfolio of the subject’s online activity — including screenshots, metadata, and source code.
Don’t risk overlooking valuable information online. Contact SMI Aware today to start your social media investigation and mitigate risk under the new NLRB ruling on social media misconduct.
