Ninth Circuit Ruling Upholds Employee Speech Amid Stalled NLRB
Like it or not, social media has become the backdrop of almost everything we do. It’s how many people read the news, interact with friends and family, and vent after a long workday.
For employers, employee social media posts are more than background noise, but rather a live microphone pointed at the workplace, blurring the line between personal expression and conversations that may have an unintended impact on the work environment.
When an employee’s social media post sparks concern, employers may find themselves asking — how far can an employer go with respect to setting rules to protect the business without stepping on employees’ rights?
The National Labor Relations Act’s Interplay With Employer Social Media Policies
Section 7 of the National Labor Relations Act protects employees’ concerted activity, whether they belong to a union or not. Under the statute, employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Section 8(a)(1) makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
Co-worker discussions about pay, hours, staffing or safety are textbook examples of protected concerted activity under the NLRA. Moving those discussions to social media does not alter the protected status of this activity.
On Oct. 28, the U.S. Court of Appeals for the Ninth Circuit issued a significant decision in National Labor Relations Board v. North Mountain Foothills Apartments, discussed more below, that underscores the ongoing significance of NLRA protections for employee speech, even as employers struggle with regulatory uncertainty.
The Uncertain NLRB Landscape
In the past few years, NLRB decisions have made the determination of what workplace activity infringes on Section 7 rights more nuanced, particularly where policy language concerning employee speech rights is implicated.
In 2023, the board’s decision in Stericycle Inc. changed the lens through which employer policies are viewed.[1] The effect is straightforward, but significant: If an employee could reasonably read a rule as discouraging protected concerted activity, the rule is presumed unlawful, regardless of the employer’s intent, and even if another reasonable reading would be benign.
The employer can overcome that presumption only by showing that the rule advances a legitimate and substantial business interest, and that the interest cannot be achieved with narrower language.
The standard under Stericycle, i.e., whether an action could chill employee rights, puts common policy language under more scrutiny.
Employers may wonder: What about a blanket ban on negative or disparaging comments about the company? Under the Stericycle standard, that is far too broad.
What about a confidentiality rule that reads as though employees are not permitted to discuss schedules, wages or safety concerns because those are internal matters? It’s risky.
A second NLRB decision from 2023, Lion Elastomers LLC II, is particularly relevant for the moments when online speech gets hot.[2] The NLRB returned to setting specific and context‑driven tests for assessing potential abusive conduct, including a totality‑of‑the‑circumstances approach for social media posts.
Under such tests, an employer should not read a sharp‑edged post in a vacuum, but rather, look at what the poster was reacting to, whether it was part of a discussion about working conditions, and how the post would be understood by an audience of co‑workers.
This test does not license threats or slurs, but it does instruct employers to evaluate hyperbole with care before concluding that an employee’s speech has lost legal protection.
Notably, both Lion Elastomers and Stericycle are decisions that were issued under the prior administration and board, reflecting the employee-friendly decisions of the NLRB at that time. Thus, they could be subject to change as the makeup of the board changes under the current administration.
For now, the rules of the road that emerged during President Joe Biden’s administration, including Stericycle and Lion Elastomers, remain the law.
Navigating such complex decisions is hard enough for an employer to do in a steady legal environment. But as it stands in 2025, the luxury of stability is lacking.
The NLRB, with only one current member, has operated for months without a quorum, meaning that the board cannot issue decisions, even as its regional offices have continued investigating charges and running elections.
A Senate committee has advanced two nominations tied to the agency, with a third just receiving approval this week following the tabling of a planned vote earlier this fall.
Ninth Circuit Lessons on Limiting Employee Speech
On Oct. 28, the Ninth Circuit issued a confirmatory decision in NLRB v. North Mountain Foothills Apartments LLC, upholding the NLRB’s authority and structure against a series of constitutional challenges.[3]
The case centered on an employer that terminated an employee after they discussed wages and working conditions with co-workers, which was protected conduct under Section 7 of the NLRA.
The Ninth Circuit affirmed the NLRB’s finding that the employer’s actions constituted an unfair labor practice, reinforcing that employee speech about workplace conditions remains protected.
The decision is especially timely as employers navigate compliance in an era of heightened social media activity.
With the NLRB operating for months without a quorum, the board’s ability to issue new decisions is stalled, leaving a question of whether regional offices will apply existing employee-friendly rules from prior decisions, such as Stericycle and Lion Elastomers.
The Ninth Circuit’s opinion shows that, despite the board’s current paralysis, courts continue to enforce NLRA protections robustly, and employers must tread carefully when considering discipline for employee speech, whether in the break room or online.
Hypothetical Situation Involving Employee Social Media Use
Consider a familiar scenario. A frustrated night-shift employee records a 30‑second TikTok outside the company facility, stating: “They keep cutting hours and expect us to do three jobs with two people. It is unsafe. We’ve told management, but nothing changes.”
Within hours, co‑workers are commenting and reposting, first with sympathy toward the employee, then later with scorn directed at the company.
Later, the same employee uploads a screenshot of an internal safety audit. In a separate post, the employee calls a supervisor a crook and accuses him of stealing from the company.
By morning, the company management’s email inboxes are full, a reporter from the local news station has requested to interview the company, and human resources is reviewing a social media policy that suddenly feels too vague and too broad at the same time.
What should an employer do in this complex example with multiple posts and varying allegations?
When information spreads like wildfire, and emotions — and risks to the company’s reputation and employee morale — run high, it can be tempting to reach for the strongest remedy — delete, discipline, demand silence or potentially terminate.
But employers must proceed with caution, because the NLRA protects concerted activity even if employee conversations have moved from the water cooler to TikTok.
In the above scenario, the first post, in which the employee complained about understaffing and unsafe conditions, is very likely protected under the NLRA. Discipline aimed at the content of that post would potentially risk an unfair labor practice charge, even if the employees are not members of a union.
However, this does not mean that all online speech is insulated from consequences. For example, the NLRA’s protection can be limited by threats of violence, unlawful harassment or knowingly false statements. Similarly, disclosures of company trade secrets and confidential, commercially sensitive information are not protected.
Employers must understand the legal guardrails before deciding whether a social media post calls for a conversation, corrective action or no action at all.
With the guideposts of the above NLRB decisions, the Ninth Circuit ruling and the board’s current positioning in mind, a review of the above hypothetical is warranted.
The first post, which included a video that discussed understaffing and unsafe conditions, is likely protected, and disciplining the employee for hurting the brand is risky.
The second post, consisting of a screenshot of an internal safety audit, is a closer call.
If the document is genuinely confidential in a way that the law recognizes, then a narrowly tailored confidentiality policy may justify requiring the employee to remove the post, and could support disciplining the employee for having posted the document.
If, on the other hand, the document is more akin to a routine checklist, or if it contains information that employees commonly reference on the floor and that is widely known, disciplining the employee may carry more risk.
Finally, the post that included an allegation that a supervisor is a crook who steals from the company raises the question of truthfulness. A knowingly false accusation may lose protection, but an angry conclusion that is drawn from a real dispute over bad actions by the supervisor may not — context will drive the risk.
Before acting, a prudent employer will gather the facts, assess the post as part of a larger conversation, and apply consistent standards that are used in similar incidents.
Best Practices for Employer Social Media Policies
So, what does a practical and lawful social media approach look like at this moment? It starts with an acknowledgment that employees will talk about the workplace online.
The policy should explain, in plain language, the legitimate interests that the company is protecting — such as customer privacy, trade secrets, compliance with securities and healthcare laws, safety, and the company’s anti-harassment policy — and then tailor the rule to those interests.
Rather than forbidding all negative commentary, a targeted policy should prohibit conduct that is already unlawful under other rules and laws, or conduct that can be excepted from NLRA protections, such as threats, discriminatory slurs and harassment.
When it comes to confidentiality, define what is covered confidential information and give concrete examples that are grounded in the business, rather than sweeping categories that may cover worker discussions of schedules, pay or safety.
If the business requires a rule limiting photography or recordings in certain areas, the policy should tie it to specific safety or privacy obligations, and carve out protected concerted activity and lawful whistleblowing.
Employers should make it clear that official brand channels are different from personal accounts, and require employees to explain that the views they express online are their own, and not necessarily those of the company.
Policy language is only half the job. Employers must also consider enforcement. It is wise to train managers and anyone who is tasked with moderating or escalating posts to recognize protected concerted activity, and to take a breath before reacting to a sharp comment, escalating such matters to human resources first.
When an issue surfaces, employers should preserve the post, gather context and have consistent evaluation. As with many HR functions, consistency is key.
Employers do not need to surrender to the loudest voices. Instead, they should separate what is uncomfortable from what is unlawful. A company can and should respond to inaccurate claims with accurate information, and with potential discipline if appropriate.
If a social media post reveals a true concern that employees have about the workplace, a wise company will investigate the concern and, when appropriate, fix the issue that the post revealed.
A strong social media policy can protect customers, trade secrets and employees. This can be accomplished by drafting rules with careful attention and appreciation for the legal protections around employees’ concerted activity.
The Ninth Circuit decision underscores that, even during periods of regulatory uncertainty at the NLRB, federal courts continue to uphold employee speech rights under the NLRA — reminding employers that legal protections for workplace discussions persist regardless of agency paralysis.
If there is a silver lining to the NLRB’s current landscape, it is that employers still have time to consider their social media policy strategy and the risks that companies face in the digital age.
There is no denying that social media is where many public conversations happen, including conversations about work. Trying to silence all work-related content is both unrealistic and, in many cases, unlawful under current standards.
Meeting the reality with clarity, reasonable rules and a willingness to engage where a raised concern is legitimate is the approach that is most likely to survive legal scrutiny and build trust and morale with employees.
[1] 372 NLRB No. 113 (Aug. 2, 2023).
[2] 372 NLRB No. 83 (May 1, 2023).
[3] No. 24-2223 (9th Cir. Oct. 28, 2025).
This article was originally published in Law360v on December 4, 2025, and is republished here with permission.
