The Acting General Counsel of the National Labor Relations Board has made quite a few waves in recent months, some of them involving the issue of what employers’ social media policies can and cannot prohibit. For all the employers out there who believe that they are getting the short end of every decision on these matters, this one’s for you. The GC’s Office recently issued an Advice Memorandum that upheld (that's right, upheld) an employer’s discipline of an employee for posting offensive tweets on Twitter.
Lee Enterprises, Inc., d/b/a The Arizona Daily Star, had no social media policy when it began encouraging its reporters to start using Twitter and other social media. One employee, a reporter on public safety matters, posted a tweet that was critical of a headline in the newspaper’s sports section. The human resources department counseled him to discuss his concerns, rather than tweeting about them, and the managing editor later prohibited him from airing his grievances or commenting about the newspaper “in any social media forums that may damage the goodwill of the company.”
Duly chastened, the reporter complied for a few months, but eventually gave in to temptation. Over a period of about three weeks he fired off a series of tweets that were generally offensive and called negative attention to the newspaper, including one that referred to employees of a local television station as “stupid TV people.” Taking the position that the reporter was using a work-related Twitter account that incorporated references to the newspaper and contained a link to the newspaper’s website, the managing editor terminated him. Predictably, the employee filed an unfair labor practice charge claiming that the newspaper’s discharge of him amounted to enforcement of an unlawful rule that punished employees for engaging in activity protected by Section 7 of the National Labor Relations Act.
Surprisingly, to some, the NLRB’s Division of Advice sided with the newspaper. It determined that the counseling and discipline of the reporter did not amount to creation and enforcement of an unlawful rule. Rather, they were part and parcel of disciplinary action directed only at him and only after he had been warned to stop engaging in a personal course of conduct that could damage the goodwill of the company. The prohibitions on the reporter’s use of social media were not directed toward any other employees, and there was no indication that the reporter’s actions could be deemed “concerted” activities on behalf of anyone other than himself. (In order to be protected by the National Labor Relations Act, actions must be concerted (i.e., taken on behalf of more than just the particular individual in question)). Thus, because the reporter’s tweets did not relate to his terms and conditions of employment or seek to involve others in issues related to employment, the offensive conduct was unprotected and the discharge was not unlawful.
Following several social media-related actions that left a bad taste in employer’s mouths, including the prosecution of a Connecticut employer for terminating an employee who posted derogatory comments about her supervisor on Facebook, this latest development may signal that the NLRB is not taking the “no prisoners” approach that some employers have feared. Only time will tell. For now, enjoy the NLRB's recognition that employers still have a right to protect their business interests from the misconduct of employees who act only for themselves.
The NLRB's advice memorandum can be found here.