HR News & Trends, Legal Issues

Here’s Proof That a Twitter Firing Can Withstand NLRB Scrutiny

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By Eric. B. Meyer

I was considering three topics for today’s post:

  1. A teacher who was fired for watching 67 seconds of pornography;
  2. This smokin-hot cheerleader, fired for the NSFW-version of this photo, who has filed a national-origin discrimination claim against the Indianapolis Colts; or
  3. A National Labor Relations Board Advice Memorandum on employee use of Twitter in the workplace.

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.

FACTS: The Charging Party creates a Twitter account.

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.

The Charging Party tweets inappropriately.

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:

  • “You stay homicidal, Tucson. See Star Net for the bloody deets.”
  • “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
  • “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor’.”
  • “I’d root for daily death if it always happened in close proximity to Gus Balon’s.”
  • “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”
  • “My discovery of the Red Zone channel is like an adolescent boy’s discovery of his …let’s just hope I don’t end up going blind.”

The Daily Star fires the Charging Party for tweeting inappropriately

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.”

Daily Star within it’s rights to fire the charging party

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:

  • Two or more employees addressing their employer about improving their working conditions and pay;
  • An employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
  • Two or more employees discussing pay or other work-related issues with each other;
  • Refusing to do any or all of these things.

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.

Employers still need to tread carefully

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.

  1. Protected concerted activity is still sacred. Read the examples listed above. If the Charging Party had tweeted like this, and then other employees had chimed in with replies or retweets, the Charging Party still has a job and the Daily Star is in a heap of trouble.
  2. Context matters. The Advice Memorandum highlighted three separate red flags that could have gotten the Daily Star into hot water. First, the Managing Editor told the Charging Party to “stop airing his grievances or commenting about the Employer in any public forum.” Second, the Managing Editor told the Charging Party that that he was not allowed to tweet about “anything work related.” Third, the Charging Party’s termination letter refers to the fact that he was told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.” Because, the Managing Editor made these statements in response to clearly offensive and inappropriate comments from the Charging Party, the Associate General Counsel let them slide. However, were these rules promulgated in a social media policy, the NLRB would have taken a very different position, because they would have a chilling effect on employees’ rights to engaged in protected concerted activity.
  3. Get a reasonable social media policy. And in that social media policy, make it clear that inappropriate, non-work-related comments can lead to discipline up to, and including, termination.

You can read a copy of the NLRB Advice Memorandum here.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .