LABORED RELATIONS: NLRA and Disciplinary Action for Social Media Abuse

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By Tim Kamin

The discharge of employees for making comments through social media such as Twitter, Facebook and Myspace has resulted in dozens of lawsuits under various employment rights statutes in the past couple of years. The National Labor Relations Act (“NLRA”) is no exception. While employers and employees have easily discerned, for example, that sexual harassment via social media is plain, old sexual harassment, lesser known protections of the NLRA are being raised for the first time in many workplaces due to the unique nature of social media.

The NLRA is best known for establishing the rights of employees to unionize and bargain collectively. In recent years, the National Labor Relations Board (“NLRB”) has stepped up enforcement of the NLRA’s protection of the right of employees – union or non-union – to engage in “other concerted activities…for mutual aid or protection.” “Concerted” means more than one employee is involved or a lone employee engages in the conduct on behalf of other employees. “[F]or mutual aid or protection” means that conduct must address something germane to the workers’ relationship with the employer, such as wages, benefits, work rules, working conditions, disciplinary action, and other grievances.

Derogatory comments about employers probably have been made for as long as employment relationships have existed. When a comment is verbalized, its audience is limited and it remains, if at all, only in the memory of those who heard it. It may filter back to the employer through the grapevine, but the information is often nonspecific and unreliable. When a comment is made via social media, it is published to a potentially wide audience, it remains published, and the author, the date and time, and the word-for-word specifics of the comment are preserved. As employee comments about employers have moved into social media, the amount of conflict over such communications has increased under the NLRA, and there are several examples in the first half of 2011 alone.

In February, the NLRB settled allegations against American Medical Response, which had discharged an employee for calling her supervisor a “mental patient,” a “scumbag” and a “dick” in a Facebook posting. The settlement addressed the discharge of the employee, but also required the employer to revise an “overly broad” social media policy that allegedly chilled employee protected activities.

In April, the NLRB issued a complaint against Thomson Reuters Corp. in New York City for disciplining a reporter who “Tweeted” a comment that the employer should “deal honestly with [union] members,” and again the NLRB took issue with an “overly broad” policy.

In May, the NLRB issued a formal complaint against Hispanics United of Buffalo, a New York non-profit agency, for allegedly terminating five employees who posted comments on their Facebook pages that criticized their employer’s staffing levels and the workloads placed upon them.

On the other hand, an Advice Memorandum issued by the NLRB’s General Counsel in April advised that the Arizona Daily Star’s discharge of an employee for inappropriate Twitter comments was lawful because the objectionable comments were not protected activity. The offending comments included offensive comments about reported homicides in Tucson and comments critical of local television personnel. The General Counsel reasoned that these comments were not efforts by the employee to address employer-employee relations in his workplace.

Given this flurry of activity, employers should consider establishing or reviewing and revising social media policies to establish clear guidelines for conduct while accommodating the protections of the NLRA. Employers should also proceed carefully and consult with counsel when deciding whether to discipline an employee for making derogatory comments about the employer.

Timothy C. Kamin is an attorney with Krukowski & Costello, S.C., representing management exclusively in labor and employment law matters, including unfair labor practice and representation proceedings before the National Labor Relations Board, in collective bargaining negotiations and grievance arbitration, assisting employers in responding to union organizing campaign, and employment discrimination matters.