The National Labor Relations Board (NLRB) continues to blaze new trails in an attempt to enforce its position that employees are entitled under federal labor law to discuss their working conditions, even critically, on social media. Last November, we informed you about the NLRB's prosecution of an employer for discharging an employee after she posted a "negative remark" about her boss on Facebook. Now, the NLRB is pursuing a claim that an employer's Twitter policy – as well as the way it applied that policy to an employee – violated the National Labor Relations Act (NLRA). This is the first time the NLRB has pursued an issue involving Twitter use.
The issue that led to this case arose when an employee responded to a management solicitation on a company Twitter address inviting employees to post about how to make the employer (Thomson Reuters Corp.) the best place to work. A Reuters reporter, who is also the head of the union there, responded with a tweet that said, "One way to make this the best place to work is to deal honestly with [union] members." The employee claims that Reuters then verbally disciplined her for this tweet. After investigating this issue, the NLRB alleges Reuters violated federal labor law in two ways, both of which relate to employees' right to engage in "protected concerted activity": first, it improperly restricted the employee's right to use Twitter to discuss working conditions with co-workers, and second, it had an unlawfully broad social media policy that chilled employees' rights to discuss working conditions.
Section 7 of the NLRA gives employees the right to engage in protected concerted activity. Generally, two or more employees acting together to address a collective employee concern is considered protected concerted activity. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. Employees, however, do not have unfettered discretion in choosing their mode of protest. For the concerted activity to be protected, it must take a reasonable form – the NLRA does not protect employee activity that is "unduly and disproportionately disruptive." Thus, while employers can (and should) maintain work rules and policies that address unduly and disruptive behavior, such rules must be carefully drafted so as to avoid being overly broad in violation of the NLRA.
As this case shows, employers need to be aware of the NLRA's protections to employees for engaging in protected concerted activity when contemplating taking disciplinary action against an employee. Similarly, employers should also review their social media policies to ensure they are not overly broad. Remember, the NLRA applies to both union and non-union employers, so even non-union employees have the right to engage in protected concerted activity.