Several days ago, I read the New York Times article reporting that the NLRB's Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter. At the time, I flagged the article because I wanted to use it to highlight my -- emphasis on the word, MY -- views on the NLRB's recent assault on social media policies: When it comes to social media, it is time for cooler heads to prevail, both at the NLRB and within the employer community.
So, what happened at Thomson-Reuters? According to the article in the Times, the company on one of its Twitter outlets had invited employees to post suggestions on Twitter about how to make Reuters the best place to work. In response, an employee, who was also the head of the Newspaper Guild at Reuters, tweeted: "One way to make this the best place to work is to deal honestly with Guild members." The next day, her supervisor contacted her at home to advise her about Reuters policy of not saying things that would damage the company's reputation. Though Reuters denies that it disciplined the employee, she complained that she felt threatened and intimidated. A source at the NLRB apparently confirmed to the Times that it would be filing a complaint against Thomson-Reuters accusing the company of violating the employee's right to engage in concerted, protected activity with co-workers to improve working conditions.
Here we go again... In February, the NLRB's Region 34 settled its complaint against a Connecticut ambulance company for having an allegedly overbroad social media policy and disciplining an employee for criticizing a supervisor. The settlement required the company to revise its policy to "ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.” The employer also agreed that it “would not discipline or discharge employees for engaging in such discussions.”
My initial reaction is that the NLRB is making the proverbial mountain out of a molehill in this case -- but perhaps not before Thomson-Reuters did. While I agree with those who question whether the NLRB is being unnecessarily aggressive in these discipline cases, I also have to believe that Thomson-Reuters is questioning whether its manager's response to this particular tweet was worth the trouble it now is causing. I'm certain that far more people have become aware of this tweet than if they had simply ignored it -- thus exponentially increasing any disparagement Reuters may have felt. This added negative publicity, of course, is separate and apart from whether the tweet really amounts to protected concerted activity under Section 7. So, employers: think twice before reprimanding, disciplining or terminating an employee because his or her tweet hurt your feelings. If there truly is serious damage to the company's reputation either as a result of disloyalty, product disparagement or other acts that are contrary to the company's interests, this is where I believe the NLRB needs to back off. But, based on what I've seen, I don't think that either the AMR case or the Thomson-Reuters case reached this threshold.
On the other hand, I'm hoping that the NLRB's aggressive stance towards social media policies does not suggest an intent to gut the framework that is contained in the December 2009 Advice Memorandum in Sears Holdings. In Sears Holdings, the General Counsel's office announced a reasonable and workable framework for analyzing whether a social media policy was improperly overbroad because it would tend to chill employees' Section 7 activities. The policy at issue in Sears Holdings prohibited employees from, among many other things, disparaging the company's "products, services, executive leadership, employees, strategy, and business prospects." The General Counsel's office advised that this policy would not be considered overbroad because there was no evidence that Sears has used the Policy to discipline any employee for engaging in protected activity, nor that the Policy was promulgated in response to any Section 7 activity. Finally, the General Counsel concluded that, when read in the context of the entire social media policy, no reasonable employee could have construed the non-disparagement provision to prohibit lawful Section 7 activities. In short, the Sears Holdings Advice Memorandum would require consideration of the entire policy in the context under which it was enacted before concluding whether the policy was overbroad.
In my opinion, Sears Holdings provides a reasonable and workable framework for analyzing social media policies and any abandonment of this framework, would be a mistake. But we are at a point where the NLRB's Acting General Counsel should either reaffirm the Sears Holdings framework or provide some additional guidance so that employers will at least know how to tailor their social media policies to avoid the Board's ire. Any additional guidance should continue to permit employers to include non-disparagement provisions in their social media policies, particularly if the policy contains some notice to employees that the policy is not intended to prevent them from discussing terms and conditions of employment.