Remember the holiday blockbuster toward the end of last year that featured the complaint by the National Labor Relations Board (“NLRB”) against a Connecticut ambulance company arising out of its Facebook-related termination and social media policy? Box office hits went through the roof in the first weeks following that release, as analysts, pundits and the general business community remained on the edge of their seats waiting for some absolute guidance on this new area of the law. However, as you know from my February 9th blog post, the drama fizzled when the parties settled that case without any legal findings being established. The saga effectively went unceremoniously direct to DVD.
Get your popcorn ready, as the NLRB is about to release the long-awaited sequel. This time, the New York office of the NLRB is claiming that Thomson Reuters Corp. has violated the National Labor Relations Act (“the Act”) with its corporate Twitter policy. According to news reports, a reporter from the Newspaper Guild (which represents Thomson Reuters) had previously tweeted to Thomson that “one way to make this the best place to work is to deal honestly with Guild members.” Thomson, in turn, allegedly disciplined the employee for the tweet.
And, although I have not yet seen any indication that the employee was actually engaging in “concerted” activities or discussing any working conditions with at least one other co-worker (as opposed to merely sending a directed tweet to her employer), the NLRB seems to be taking the position that Thomson Reuter’s policy improperly restricts employee rights to use Twitter for the purpose of discussing working conditions. Unfortunately, this production is only in private previews at the moment, as the NLRB’s full complaint itself has not yet been made public.
I will continue to monitor things, and will update you further once we have had a chance to review the allegations in the complaint.
Employer Take Away: What should you as an employer take away from this development? The same stanza is worth repeating in this musical score. While creating or updating your company’s social media policy is a necessary first step, you will only be creating more problems if there are aspects to your policy that ultimately are held to be unlawful.
Whether your company has a union or non-union facility (remember, the Act covers both), it is clear that the NLRB is taking very seriously the issue of corporate policies and practices that impact the use of social media in the workplace. By continuing to make sure you carefully scrutinize your policy, balanced against your legitimate interests associated with operating your business, you can minimize the risk that your company will someday play a leading role in what becomes the trilogy.