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(148) While not requiring proof of harm (149) for this factor to weigh in favor of finding opprobriousness, there should be a legitimate probability the social media post could, in fact, harm the company.
Finally, it is critical that the opprobriousness standard remain a high standard--in other words, protected concerted activity should seldom lose its protection for opprobriousness, even in the social media context.
By adopting and adapting the modified Atlantic Steel test for use in social media cases, the NLRB and courts will have a consistent standard for analyzing whether otherwise protected concerted activity loses its protection because of opprobriousness. The standard responds to an employer's concern that an employee's social media posts can hurt both the workplace and the company's reputation to third parties, yet still provides protection for an employee to engage in concerted activity on social media.
96 (2013), the Board did not discuss opprobriousness. The validity of many recent Board decisions, including these four, has been called into question because of a recent ruling by the DC Circuit.