Advertisement
Here’s Proof That a Twitter Firing Can Withstand NLRB Scrutiny
Get articles like this
in your inbox
The longest running and most trusted source of information serving talent acquisition professionals.
Advertisement
By Eric. B. Meyer
I was considering three topics for today’s post:
I went with No. 3. I stand by my decision. Now, how do I erase my browser history?
While I figure that out, here’s more on why the National Labor Relations Board found no unfair labor practice when: (a) a unionized newspaper company, (b) with no social media policy, (c) which encouraged its employees to use Twitter, fired a reporter based on a few tweets.
The Charging Party worked as a “crime and safety beat” reporter for the Arizona Daily Star from 1999 until September 30, 2010. In 2009, at the Daily Star’s encouragement, Charging Party (and other Daily Star employees) opened Twitter accounts. At that time, the Daily Star had no social media policy.
Upon opening a Twitter account, the Charging Party then started seeking out co-workers and others who had Twitter accounts, started following them on Twitter, and accumulated a group of his own followers, including coworkers and some of his supervisors. In the biography section of his Twitter account, the Charging Party stated that he was reporter for the Daily Star and included a link to the Daily Star’s website. In his tweets, he at times referred followers to the Daily Star’s website for stories.
The Charging Party tweeted using his work computer, his company provided cell-phone, and his home computer. At various times, the Charging Party’s Twitter account was open to everyone. And, at other times, he restricted access to his followers. The Charging Party had linked his Twitter account to his Facebook and MySpace pages. Therefore, whenever he tweeted something, the same message would be posted on Facebook and MySpace.
In early 2010, the Charging Party posted a tweet saying, “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.” This tweet was a shot at the Sports Department. The Charging Party had never discussed his concerns about the Sports Department headlines with any of his coworkers.
Upon hearing about the tweet, the Daily Star’s Managing Editor met with the Charging Party and forbade him from airing his grievances or commenting about the Daily Star in any public forum. Thereafter, the Charging Party did not stop tweeting. Instead, he posted tweets, including:
After learning about the Charging Party’s tweets, the Managing Editor once again met with the Charging Party. She asked the Charging Party what he was thinking when he posted these tweets. She then told him that it was not OK for him to be making these types of tweets and asked how he would feel if this was his family (who had been victims of a homicide).
The Charging Party said he was sorry if the tweets offended anyone, because his intent was not to offend but to relay information. The Managing Editor told the Charging Party there were other ways of relaying information, and that because the Executive Editor and the Human Resources Director were not in the office, she could not fully discuss everything with him, and they would have another meeting about his tweets. Until then, she told the Charging Party that he was not allowed to tweet.
Just over a week later, the Daily Star fired the Charging Party. The Charging Party’s termination letter reads, in relevant part, as follows:
Your employment with the Arizona Daily Star is terminated effective today, September 30, 2010. We have provided repeated training on our Respectful Workplace Guidelines, a high level of supervision and regular feedback, yet you continue to disregard professional courtesy and conduct expectations.
Despite the multiple warnings, suspension and final verbal notice issued as recently as February 2010, when you were told to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company, you have again disregarded that guidance.
After careful review of last week’s inappropriate Twitter posting along with other concerning postings, we have no confidence that you can sustain our expectation of professional courtesy and mutual respect therefore, you give us no alternative but to terminate your employment immediately.”
The Charging Party broke the rules and did not engage in protected concerted activity.
Remember the case involving the Connecticut ambulance driver who was fired for talking smack about her supervisor on Facebook? In that case the NLRB got her back and called out her former employer for having an overly-broad social-media policy which the NLRB construed as precluding employes from discussing the terms and conditions of employment and chilling their rights to engage in protected concerted activity. What is protected concerted activity?
Some examples include:
In the Connecticut case, the employee posted on Facebook about her supervisor. And then other employees commented on the original post. So, arguably, there was protected concerted activity. Not the case with the Charging Party and the Daily Star, according to the NLRB’s Associate General Counsel:
Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct. The Charging Party’s conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other after opening a Twitter account and linking it to the Employer’s website, the Charging Party began tweeting inappropriate comments. The Employer warned the Charging Party that his comments were inappropriate, but he ignored the warning and continued to post additional inappropriate tweets while covering his beat as a public safety reporter.”
The Charging Party’s discharge did not violate the Act because he was discharged for this misconduct, which did not involve protected activity.
This case is stone cold, conclusive proof of what both I and some others have been saying all along: There are times when an employer — union or non-union — can fire an employee for abusing social media. However, before you get all trigger-happy, allow me to hit you with three important points that flow from this Advice Memorandum.
You can read a copy of the NLRB Advice Memorandum here.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.