In the current era where social media infiltrates the workplace and a recent case settled where the National Labor Relations Board (“NLRB”) felt employees who criticized their supervisors on Facebook were engaged in protected activity, employers now have to think twice before reprimanding employees because of their “tweets.” (For more information on recent case, see Squire Sanders’ Triage Blog)
As reported by the New York Times in Labor Panel to Press Reuters Over Reaction to Twitter Post by Steven Greenhouse, the NLRB, once again threatened to file a complaint for social media use: this time against Thomson Reuters because of a reprimand issued to one of its employees due to a tweet that criticized management. The author of the post stated that she posted the tweet in response to a request from the Company to let them know how to make Thomson Reuters the “best place to work.” She was then surprised when she was called at home by the Bureau Chief:
“He told me that Reuters had a policy that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters. I felt kind of threatened. I thought it was some kind of intimidation.”
Prior to the NLRB issuing a complaint, Thomson Reuters settled with the union (as reported in the New York Times). However, the NLRB was prepared to file a complaint alleging that the telephone call chilled the employee’s right to free speech and is therefore, protected activity.
Although these NLRB cases deal with unionized employees, it is no secret that decisions involving the NLRB can help to shape the law dealing with non-unionized and private employees.
This begs the question then as to whether employers, who are increasingly instituting social media policies, are being unreasonable if they prohibit posting criticism that could damage the employer’s reputation. Unfortunately, the verdict is still out. Employers should review their own policies in light of these recent cases to ensure they are not too restrictive of an employee’s actions outside the workplace and consult legal counsel before disciplining employees for such conduct.
