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NLRB Targets Another Social Media Policy

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. 

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