Monday, June 20, 2011
Well, a similar case has now arisen involving an employee that was fired for comments he posted on Twitter or shall we call them for his “Tweets”. The Regional Director filed a charge against the company for this firing alleging that the firing violated the NLRA. However, the NLRB gave us some insight into the difference between the two cases (without actually discussing the Facebook Firing case) in an Advice Memorandum issued on April 21, 2011 by Barry J. Kearney, Associate General Counsel in the NLRB’s Division on Advice in which he advised the Regional Director to dismiss the charge against the employer.
In the Facebook Firing case, the employee was actually engaging in “concerted activity” on Facebook and this is what she was fired for. What does it mean that she was engaging in “concerted activity”? Well, it means that she was having a discussion on Facebook with her work friends and they were discussing her supervisor and her terms and conditions of employment. This is no different than standing around the water cooler talking with her co-workers about her supervisor and job and this is activity that the National Labor Relations Act protects. She cannot be fired for having these conversations. So the fact that they may have happened on Facebook rather than at the water cooler is irrelevant. As far as the NLR B is concerned, they are still protected.
So what happened in the Twitter case. In this case, a newspaper reporter that worked for the Arizona Daily Star newspaper was fired based on the tweets he was posting on Twitter. The newspaper was in the process of creating a Social Media Policy but did not yet have one although it did have an employee handbook. The employee used both his work computer at work, his home computer and his cell-phone to send his Tweets. The employee posted a Tweet making derogatory comments about the sports editors and sports department at the newspaper. HR then called him in to a meeting and he was told to stop commenting about the newspaper in any public forum and to stop airing his grievances publically. The employee allegedly continued Tweeting although he refrained about making comments about the newspaper.
Over a period of a month, he started sending Tweets that were inappropriate talking about some homicides that had taken place and then also sent a Tweet about an affiliate TV station that was again derogatory. He was suspended for three days and then he was terminated allegedly for violating the newspaper’s Respectful Workplace Guidelines. The newspaper relied on the fact that he had been “warned to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company” and yet he continued to engage in this activity.
What is most interesting about this case is how the NLRB viewed it and how it appears to differ from the Facebook firing case in CT. The NLRB held that this Twitter Firing did not violate the NLRA because of the fact that the tweets that the employee was fired for sending did not involve “concerted activity”. Although the employee claimed that the rule he was terminated for violating was “overbroad” as in the Facebook Firing case, the NLRB clarified that overbroad rules that could violate the NLRA only actually violate the NLRA and cause action by the NLRB when the employee was actually engaging in “concerted activity” at the time he/she was fired under the overbroad rule. Since the employee’s firing in the Facebook Firing case was actually based on her activity in discussing work conditions and making derogatory comments about her supervisor with other employees this was “concerted activity”. However, the NLRB reasoned that in this Twitter Firing, it was distinguishable because here the employee was not engaging in “concerted activity” when he was terminated. Rather, he was terminated for “posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. engaging in misconduct.”
The NLRB provided further insight by telling us that in this Twitter Firing case, the employee’s “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.” Thus, this case is distinguishable from the Facebook Firing case because here the employee was discharged for tweeting inappropriate comments, ignoring warnings by his employer to stop this misconduct and continuing to post inappropriate comments despite these warnings by management. Significant to the NLRB was that his actions did not involve “concerted activity”.
The NLRB also commented on statements made by the employer in this case that could possibly be seen as overbroad and in violation of the Act but which were ultimately not a violation in this case because they were communicated to one employee as discipline during his lawful termination rather than being issued as a rule or policy to all employees. The statements that the NLRB indicated could violate the NLRA if made as a broad policy to all employees were as follows:
• Management warned the employee to “stop airing his grievances or commenting about the Employer in any public forum”; and
• Management warned the employee that he was prohibited from tweeting about anything work-related; and
• Management in its termination letter referred to that the employee had been told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company”.
This case is helpful from many perspectives. First of all it sheds some light into the NLRB’s thought process with regard to social media policies and how they could potentially violate the NLRA. In addition, it clarifies that even if an employer had an overbroad policy such as a policy that included the overbroad statements above, it appears that termination of an employee for violating that policy would still not be held to be a violation of the NLRA if the employee was not engaging in “concerted activity” while using social media and thus was terminated for social media posts that did not involve “concerted activity”.
Copyright© 2011 HR Learning Center LLC
Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC