Another Social Media Skirmish: Discipline for a Tweet Gets the NLRB Involved

By Eric B. Meyer

Did a bunch of bloggers sue you last week for wage and hour violations?

Has the National Labor Relations Board (NLRB) threatened to file a complaint against you for Twitter shenanigans?

Well, that was Thomson Reuters’ week. And, as you can imagine, it sucked.

I share their grief.

The NLRB continues to target businesses that discipline employees who trash management.

Steven Greenhouse of The New York Times reports that the NLRB intends to file a complaint against Thomson Reuters. The company allegedly reprimanded writer Deborah Zabrenko (@zabarenko) for making this tweet to Reuters managing editor Betty Wong (@DestinationRTRS):

According to The New York Times report, the NLRB has not yet taken any official action, but has confirmed to Thomson Reuters that it plans to do so:

A National Labor Relations Board official confirmed…that the board’s Manhattan office had informed Thomson Reuters and the union [the Newspaper Guild] of the planned complaint. The official, who insisted on anonymity because the complaint had not yet been filed, confirmed that it involved an accusation that the company had violated a worker’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions.

Typically, the agency warns parties before a formal complaint is filed to encourage settlement of the dispute. If no settlement occurs, an administrative law judge will hear the complaint.

A Thomson Reuters spokeswoman said the company was surprised by the board’s complaint because it did not believe Ms. Zabarenko had even been disciplined. She said the company’s social media guidelines were straightforward and like those at many other companies.”

Last November, an NLRB regional office filed a complaint against a CT employer which had terminated an employee for criticizing her boss on Facebook. That matter settled and, as part of the settlement, the employer agreed to revise its social media policy to allow employees to discuss online certain matters relating to their jobs (e.g., wages, hours, working conditions).

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In the CT case, many co-workers of the terminated employee posted comments under the original inflammatory post. Accordingly, the NLRB took the position that the employees were engaging in protected concerted activity.

With Thomson Reuters, as far as I can tell, there has only been a single tweet. Generally (but not always), protected concerted activity involves communication between two or more employees.

However, if I were to read the tea leaves, I suspect that the NLRB will take the position that Thomson Reuters has an overly broad social media policy — I have never seen the policy — that chills the rights of employees to discuss working conditions. So, even without protected concerted activity, the mere threat to protected concerted activity may be enough to carry the day for the NLRB.

This case could be hot. I will be following it closely and providing updates.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “Another Social Media Skirmish: Discipline for a Tweet Gets the NLRB Involved

  1. You’re joking right? Just like with the CT case, as a reasonable individual shouldn’t I be prepared to suffer the consequences about publicly calling out my employer? Who’s dumb enough to do this and think there are no repercussions? I’m sure some would argue first amendment right to free speech. And they would be right. But the first amendment doesn’t guarantee employment. Unbelievable for the NRLB to think this type of public utterance is protected.

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