NLRB Division of Advice Recommends Dismissal of Twitter Termination Charge in Arizona
On April 21, 2011,the Division of Advice issued an Advice Memorandum recommending dismissal of a charge alleging that a newspaper reporter was unlawfully terminated for Twitter posts – some of which involved his employer. In Lee Enterprises, Inc., Case No.28-CA-23267, the employer, the Arizona Daily Star newspaper, had no written social media policy. During 2010, the charging party, a public safety reporter, posted Twitter messages mocking the employer’s sports editors, joking about homicides in Tucson, Arizona, and insulting other local media outlets.
After forbidding the employee to Tweet about “anything work-related” pending the outcome of an investigation, the employer ultimately suspended and then fired him. His termination notice read, in part:
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.
The Division of Advice concluded that the reporter’s termination did not violate Section 8(a)(1) of the Act because his inappropriate Twitter posts “did not involve protected concerted activity.” More specifically, the Division noted that his posts did not relate to the terms and conditions of his employment, nor did he seek by these posts to involve other employees in issues related to employment.
The Division expressed some concern that the employer made overly broad statements to the employee that could be interpreted to prohibit Section 7 activities. Among these were a warning “to stop airing his grievances or commenting about the Employer in any public forum,” the instruction not to tweet about “anything work-related,” and the termination notice’s reference to “derogatory comments in any social media forums.” On balance, however, the Division declined to consider these comments to constitute a verbal “rule” or policy. Rather, they were made solely to the charging party in the context of otherwise lawful discipline, and were not communicated to a broader audience of employees.
Perhaps the most interesting element of the Advice Memorandum, however, is a discussion which would appear to be dicta. Although the General Counsel’s office clearly indicated it did not find an unlawful overly broad social media policy at issue in the case, it suggested strongly that it still would have considered the charging party’s termination lawful under such a policy. After acknowledging that the Board has consistently held that “an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act,” the Memorandum clarifies that discipline pursuant to an overbroad rule has been held to be unlawful “only where the underlying conduct involved Section 7 activity.”
