The National Labor Relations Board (“NLRB”) remains vigilant regarding the interaction between social media and the workplace, and has continued to focus on the impact of restrictive social media policies on employee rights under the National Labor Relations Act (“NLRA”). In an effort to issue uniform guidance on this emerging issue, all NLRB regional offices are now required to submit social media disputes to the NLRB’s Division of Advice before taking any action. Specifically, the regional offices are required to submit for review all “cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.”
Already, on April 21, 2011, the NLRB General Counsel published an Advice Memorandum regarding a social media complaint. The case at issue involved an employee of The Arizona Daily Star (the “Daily Star”) who was terminated for posting “inappropriate and offensive” Tweets to a work-related Twitter account. For example, the employee made the following posts:
“The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.”
“You stay homicidal, Tucson.
See Star Net for the bloody deets.”
“WHAT?!?!? No overnight homicide?
WTF? You’re slacking Tucson.”
The NLRB General Counsel centered his decision on whether these Tweets qualified as “protected, concerted activity,” and reasoned that they did not because the Tweets “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Accordingly, the General Counsel concluded that the employee’s discharge did not run counter to the NLRA and declined to issue a complaint against the Daily Star.
In another social media case, the NLRB Regional Director in Buffalo, New York reached the opposite conclusion in a case involving a nonprofit organization. Hispanics United, a group helping low-income Latinos, terminated five employees after they went on Facebook to criticize their working conditions. Unlike the Tweets in Daily Star case, the comments posted on Facebook related to terms and conditions of employment, and the NLRB issued a complaint against the employer. Trial in the Hispanics United case is expected to begin soon.
These cases illustrate the scrutiny that the NLRB is giving employer actions involving social media. As the law continues to develop in this area, employers should review their current social media policies, consider revising overly broad restrictions and, as always, exercise caution before taking an adverse employment action against employees for their social media use.