The NLRB’s General Counsel’s Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.
The employee was a public-safety reporter for a newspaper in Tucson, the Arizona Daily Star. The paper encouraged its reporters to use social media, including Twitter, to engage its readers.
In early 2010, the employee posted a tweet criticizing a headline written by another reporter. He was called for a meeting with Human Resources and was “encouraged” to discuss his concerns instead of airing them on Twitter. Later, the managing editor told him not to post grievances or otherwise comment about the paper “in any social-media forums that may damage the goodwill of the company.”
The employee complied for a while but, eventually, gave in to the lure of Twitter and posted several comments critical of the paper. Not surprisingly, he was terminated as a result. The termination was submitted to the NLRB, thus resulting in the recent Advice Memorandum.
The key holding in the Memorandum is this: an employee who is “terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so” does not violate the employee’s NLRA rights. In short, the employee was fired for engaging in misconduct that, in and of itself, did not consitute protected concerted activity. Therefore, there was no basis to find a violation of the NLRA.
Porter Wright’s always excellent Employer Law Report blog has a detailed summary of the decision, as well as a link to the Advice Memorandum. The case is Lee Enterps., Inc. d/b/a Arizona Daily Star, No. 28-CA-23267.