This week, the National Labor Relations Board told Thomson Reuters that it will file a civil complaint accusing the company of illegally reprimanding a reporter over a public Twitter posting criticizing management. The reporter posted the following to a Reuters Twitter address: “One way to make this the best place to work is to deal honestly with Guild members.” She was subsequently advised by Reuters’ management that she should not have published a post that could damage the company’s reputation. Although she has indicated that she felt intimidated, it is not clear whether she was actually disciplined for the post. The NLRB has taken the position that Reuters violated the reporter’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions. Although this is the first incident involving Twitter, it is not the NLRB’s first foray into the realm of social media. In October 2010, the NLRB filed a complaint against an ambulance company in Connecticut on behalf of an employee who had been terminated because she had posted negative comments about her supervisor on her personal Facebook page in violation of the company’s blogging and internet posting policy. That case was settled in February 2011.
The basis for the NLRB’s position in these cases is §8(a)(1) of the National Labor Relations Act, which prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under §7 of the NLRA. Section 7 permits employees, whether or not they are represented by a union, to engage in protected concerted activities to improve working conditions such as wages and benefits. In the earlier Facebook case, the Social Media policy in issue prohibited employees from “making disparaging, discriminating or defamatory comments when discussing the company or the employees’ supervisors, co-workers and/or competitors.” The NLRB took the position that the policy standing alone interfered with the employee’s right to engage in Section 7 activity. As part of the settlement, the employer agreed to revise its policy to allow employees to discuss working conditions, wages, hours, etc. In the more recent Twitter case, it is not clear if there is a company policy at issue or if the complaint is based solely on the oral reprimand of the reporter.
These cases make clear the NLRB’s intent to pursue §8(a)(1) violations in the realm of social media. As a result, employers should review and/or implement social media policies that protect their interests but stop short of the broad prohibitions that the NLRB believes will chill employees’ exercise of Section 7 rights. Broad prohibitions against making disparaging or defamatory comments about the employer, supervisors or co-workers are unlikely to survive NLRB scrutiny. Employers must also train supervisors on these issues so that they do not reprimand employees for engaging in conduct that is arguably protected; at least not without first consulting human resources or legal counsel.
Of course, this does not mean that employers may never restrict employees’ use of social media. Employers may legitimately protect proprietary, confidential and financial information, incorporate anti-harassment and discrimination policies into social media policies and otherwise legitimately curtail employees’ use of social media as it relates to the workplace. However, given the subtleties of the law and the fact that it is still being developed, it would be wise to consult with a qualified labor attorney before implementing a policy.
- Partner
Mark Chumley has experience representing management in all aspects of labor and employment law. He has handled numerous cases before state and federal courts and state and federal civil rights agencies, including claims ...
Topics/Tags
Select- Labor & Employment Law
- Employment Law
- Coronavirus
- Labor Law
- Employee Benefits and Executive Compensation
- NLRB
- Discrimination
- Department of Labor
- IRS
- Sexual Orientation Discrimination
- Retirement
- Arbitration
- NLRA
- Employer Policies
- ERISA
- Race Discrimination
- Americans with Disabilities Act
- Accommodation
- ACA
- Affordable Car Act
- Litigation
- Social Media
- Reasonable Accommodation
- National Labor Relations Act
- National Labor Relations Board
- Employer Handbook
- Employment Litigation
- EEOC
- Wage & Hour
- 401(k)
- Federal Arbitration Act
- Paycheck Protection Program
- Title VII
- ADAAA
- Workplace Accommodations
- Sexual Harassment
- Employer Rules
- Unions
- Transgender Issues
- Technology
- Employment Settlement Agreements
- Securities Law
- Privacy
- FMLA
- Disability
- Workplace Violence
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Sixth Circuit
- Disability Discrimination
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- OSHA
- Overtime Pay
- Religion Discrimination
- Gender Identity Discrimination
- Posting Requirements
- Representative Election Regulations
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Department of Justice
- Benefits
- Family and Medical Leave Act
- Environmental Law
- Privacy Laws
- Older Workers' Benefit Protection Act (OWBPA)
- Healthcare Reform
- Telecommuting
- Electronically Stored Information
- Affirmative Action
- Equal Opportunity Clause
- Compensable Time
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Return to Work
- Seniority Rights
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Classification
- Fair Minimum Wage
- Federal Minimum Wage
- Misclassification
- State Minimum Wage
- Wage Increase
- Confidentiality
- Disability Leave
- Equal Pay
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Retaliation
- Social Media Content
- Taxation
- Employment Incentives
- HIRE Act
- Social Security Tax
- Antitrust
Recent Posts
- The Practical Employment Law Podcast: Termination Done Right - Part 1
- The Practical Employment Law Podcast: Welcome 2021 - 5 Things for Employers to Consider
- Congressional Proposal Extends Tax Credits to Companies Providing Paid Leave, but Allows Requirement to Expire
- The Practical Employment Law Podcast: EEOC Issues New Guidance on COVID-19 Vaccinations
- The Practical Employment Law Podcast: Non-Compete Agreements - Five Mistakes by Three Parties
- The Practical Employment Law Podcast: Employment At-Will – Myth or Reality?
- The Practical Employment Law Podcast: COVID-19 Immunity Laws
- The Practical Employment Law Podcast: Reductions in Force - Key Factors to Consider
- The Practical Employment Law Podcast
- 5 Things Employers Should Know About Military Leave