A National Labor Relations Board report released last week attempts to explain the changing legal standards for social media usage in the workplace. It highlights a few of its administrative decisions regarding Twitter, Facebook, and other social media platforms. One of the decisions interested me enough to re-post it here.
I have omitted the boring/non-helpful parts for the lay reader:
Employee Who Posted Offensive Tweets Was Not Engaged in Protected Concerted Activity
In another case, we considered whether the Employer—a newspaper–violated Section 8(a)(1) when it discharged an employee–a reporter–for posting unprofessional and inappropriate tweets to a work-related Twitter account. We concluded that the employee’s Twitter postings did not involve protected concerted activity.
In the spring of 2009, after the Employer encouraged employees to open Twitter accounts and to use social media to get news stories out, the employee opened a Twitter account, picked his screen name, and controlled the content of his tweets. In the biography section of his account, he stated that he was a reporter for the Employer’s newspaper, and he included a link to the newspaper’s website.
In early 2010, the employee posted a tweet critical of the paper’s copy editors. The tweet was in response to his concerns about sports department headlines, but there is no evidence that he had discussed his concerns with any of his coworkers.
About a week after that tweet, the Employer’s Human Resources Director asked the employee why he felt the need to post his concerns on Twitter instead of simply speaking to people within the organization, and whether he thought it was appropriate to post these types of tweets. The employee asked if the newspaper had a social media policy. The Human Resources Director replied that the policy was being worked on.
About a week later, the employee was told that he was prohibited from airing his grievances or commenting about the newspaper in any public forum. He replied that he understood.
On September 21, the employee posted a tweet that criticized an area television station. The next day, a web producer for the television station took issue with the tweet and emailed the paper about it. Thereafter, the employee emailed the web producer and apologized.
During the afternoon of September 22, the employee was called into a meeting with the Managing Editor, the City Editor, and his team leader. The Managing Editor referred to the tweet about the television station…. She told him that it was not okay to make these types of tweets and that they would meet again when the Executive Editor and Human Resources Director were there. Until then, she said that he was not allowed to tweet about anything work-related. The employee asked whether the paper had a social media policy. She replied that it had not yet been established and that it was almost complete.
Two days later, the employee was suspended for three days without pay. When he returned to work, he was terminated. The termination letter asserted that he had disregarded guidance to refrain from using derogatory comments in any social media forums that could damage the goodwill of the company and that the Employer had no confidence that he could sustain its expectation of professional courtesy and mutual respect.
We found that the employee’s discharge did not violate Section 8(a)(1) because he was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity. His conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment. Ignoring his Employer’s warning, he continued to post inappropriate tweets while covering his beat. He was discharged for this misconduct, which did not involve protected activity.
The employee alleged that he was disciplined pursuant to an unlawful rule that prohibited certain Section 7 activities. We concluded, however, that the Employer did not implement an unlawful rule. Although some of the Employer’s statements could be interpreted to prohibit activities protected by Section 7, these statements did not constitute orally promulgated, overbroad “rules”. They were made solely to the employee in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to other employees or proclaimed as new “rules.” In fact, the Employer indicated that it had not yet developed a written social media rule.
At the end of the day the Employer did nothing wrong. However, it would of helped had the Employer had a social media policy in place.
Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.