NLRB Division of Advice: Inappropriate and Offensive Twitter Postings Not Pertaining to Employment Conditions Are NOT Protected by NLRA

On May 10, 2011, the National Labor Relations Board's Division of Advice released an Advice Memorandum (Memo) instructing one of its regional offices to dismiss an unfair labor practice charge filed by an employee who was terminated for posting offensive statements on a work-related Twitter account. Based on the Memo, the Division of Advice recognized that the employee's posts "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment."

In Lee Enters. Inc. d/b/a Arizona Daily Star, the employer encouraged its reporters to use Twitter as a means to reach audiences which do not regularly visit the employer's website. The employee set up a Twitter account identifying him as a reporter for the employer and incorporating a link to the employer's website. The employee controlled the content posted to his Twitter account, and his postings did not appear on the employer's own Twitter feed.

In August and September 2010, the employee posted offensive and inappropriate tweets about local crimes, including homicides, and a local TV station's Twitter feed. After having several conversations with, and issuing a three-day suspension to, the employee, the employer terminated the employee for failing "to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company." The employee subsequently filed an unfair labor practice charge alleging he was improperly fired based on an overbroad and illegal oral "rule" against public comment.

The Division of Advice recognized that overbroad employment policies prohibiting employees from engaging in protected activity under the National Labor Relations Act (Act) is an unfair labor practice charge. However, the Division of Advice also noted that the National Labor Relations Board has found discipline pursuant to an overbroad rule to be unlawful only when the underlying conduct involved protected activity. In this case, the employer lawfully terminated the employee because the Twitter postings did not pertain to terms and conditions of employment or involve other employees and, thus, did not constitute protected concerted activity.

As this Memo re-emphasizes, employers need to be aware of the Act's protections to employees who engage 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 Act applies to both union and non-union employers, so even non-union employees have the right to engage in protected concerted activity. However, as shown in the Memo, comments or postings on social media that DO NOT constitute protected concerted activity can subject an employee to discipline/discharge without running afoul of the Act. Because discerning what is, and is not, protected concerted activity is often difficult, employers are encouraged to call counsel prior to issuing any discipline to an employee based upon a social media posting.