TWEETS AND THE NLRB
Alfred T. DeMaria
The National Labor Relations Act (NLRA) affords employees the right to engage in criticism of their employers as long as their behavior is not unduly disruptive. When one company requested employees with a company Twitter address to make suggestions as to how to make the company a better place to work, one employee responded: “One way to make this the best place to work is to deal honestly with [employees]”. After the company disciplined the employee for his “tweet,” he filed a charge with the National Labor Relations Board (“NLRB”). The NLRB notified the company that it intended to issue a complaint alleging the company:
1. Improperly restricted the employee’s right to use “Twitter” to discuss working conditions and;
2. Promulgated an unlawfully broad social media policy that chilled employees’ rights to discuss working conditions.
This case follows close on the heels of a previous NLRB complaint, subsequently settled, involving a negative remark about a company’s supervisor posted on Facebook. This marks the first time that the NLRB has examined a question involving the appropriate use of Twitter.
Employers should be aware that the NLRA applies to both union and nonunion employers so even nonunion employees have rights under the NLRA to engage in (non-disruptive) protected, concerted activity. Accordingly, lawyers need to balance the protections given to employees under the Act with their right to maintain order and discipline. All social media policies should be reviewed to ensure that they comply with NLRB rules concerning how far employees may go in criticizing their companies in public forums.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.