If you’ve drafted a social media policy for your company, you’ve learned by now that it’s a bit of a gray area. A recent decision by the National Labor Relations Board should inspire some confidence in employers that — should the time come — it could be allowable to dismiss a staffer due to questionable use of social media. Although, in this case, note that the Tweeter in question did identify himself as an employee of the company in his bio. An electronic alert from the Oregon law firm Barran Liebman has the report (reposted here with permission):
In good news for employers, the National Labor Relations Board (NLRB) issued an advice memorandum finding that an Arizona newspaper’s termination of one of its reporters for inappropriate Twitter postings was not an unfair labor practice. The NLRB’s advice memo itself is great guidance for employers looking to understand what they can and cannot do when employees post offensive or disruptive messages about the company on social media sites.
Here are the basic facts that the NLRB examined: A Tucson, Arizona newspaper publisher terminated its public safety reporter after he posted a series of messages on his Twitter account, which the newspaper encouraged him to set up and which identified him as a reporter for the newspaper and included a link to the newspaper’s website. After the reporter tweeted, "[The newspaper']s copy editors are the most witty and creative people in the world. Or at least they think they are," human resources questioned him about why he felt the need to post his concerns on Twitter instead of speaking to people within the organization. Although the newspaper did not yet have a formal social media policy, it then told the reporter that he was prohibited from airing his grievances or commenting about the newspaper in any public forum.
The reporter continued tweeting, including a tweet about a local television news station misspelling something in its Twitter feed and several tweets of his own commentary about homicides in Tucson:
"You stay homicidal, Tucson. See Star Net for the bloody deets."
"What?!?! No overnight homicide? WTF? You’re slacking Tucson"
"Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it."
The publisher confronted the reporter about his tweets and instructed him to not tweet about anything work-related until they determined what to do. The newspaper then suspended him and terminated his employment.
The reporter filed a complaint with the NLRB, alleging that his termination violated Section 7 of the National Labor Relations Act (NLRA). Section 7 prohibits employers from disciplining employees (regardless of whether the workplace is unionized) who have engaged in "concerted activity." In this case, the NLRB attorneys concluded that the reporter’s Twitter messages were not protected and concerted activity because they did not relate to the terms and conditions of his employment, or seek to involve other employees in issues related to employment. For that reason, the newspaper was free to discipline and terminate him for misconduct since his conduct did not involve protected activity.
UPDATE (May 24): Here’s another NLRB decision regarding social media and the termination of employees. Clear as mud now?