NLRB OKs Some Tweets About Work

Labor board says some Twitter comments are protected under the law.

A Wal-Mart Stores Inc. (WMT) worker said he was disciplined for using Facebook to rail against a boss’s “tyranny.” A crime reporter in Tucson, Arizona, was fired for using Twitter to taunt that the city had too few homicides.

The National Labor Relations Board, which acts on unfair-labor practices, has reviewed 129 such cases since 2009 involving social media and the workplace, most filed this year, according to a study to be released today by the U.S. Chamber of Commerce, the nation’s largest business lobbying group.

The five-member labor board and its general counsel have sided with employers in some cases, agreeing workers can be fired for gratuitous “griping” about the boss. In other circumstances, the government has contended employees were exercising a right to speak out about workplace conditions. The NLRB risks creating a right to Twitter-bomb the boss with online insults, said Michael Eastman, who prepared the study for the Washington-based Chamber.

“The things people write on social media sites are not the most restrained,” Eastman, the Chamber’s executive director of labor-law policy, said in an interview. “Employers are concerned about where the board may go.”

The board has yet to set a policy on whether workers can discuss the workplace on social-media sites without reprisal, Eastman said. Workers disciplined for social-network posts say their comments are protected under the 1935 National Labor Relations Act, which lets employees discuss working conditions.

The number of complaints filed increased after the board said in October that American Medical Response of Connecticut Inc. wrongly fired an employee for criticizing her supervisor on Facebook, Eastman said. The agency’s Hartford office said the comments were protected as part of an online discussion with fellow workers, and the company’s policy restricting online comments interfered with workers rights.

 

‘Overly Broad’
The ambulance company settled in February, agreeing to revise “overly broad rules,” the agency said.

The Chamber report showed the board has also reviewed social-media policies at Sears Holdings Corp. (SHLD), the largest U.S. department-store chain, and complaints posted on Facebook during union organizing at Mashantucket Pequot Gaming Enterprise, which runs the Foxwoods casino in Connecticut.

“As the use of Facebook and other social media tools increases, the NLRB has seen an increase in charges filed by employees in regional offices across the country,” Nancy Cleeland, an agency spokeswoman, said in an e-mail.

The board has almost completed a report on social-media charges investigated by the NLRB that “should provide useful insights” for employers in crafting policies on the subject, she said.

 

‘Water Cooler’
“Employees in the old days gathered at the water cooler,” Marshall Babson, a partner at Seyfarth Shaw LLP in New York and Washington and a former member of the NLRB, said in an interview. “Social media is the 21st-century analogue. Employees use this device to air grievances and solicit opinions from employees. That’s why it’s protected.”

The NLRB’s taking up social-media cases will help protect employee rights, Kimberly Freeman Brown, executive director of American Rights at Work, a union advocacy group based in Washington, said in an e-mail.

“Workers are already facing a severe imbalance in the economy, so it’s important that protections for workers who speak up for fairness on the job keep up with the times,” she said.

The Chamber’s report listed the case against Wal-Mart, the world’s largest retailer, in which a worker complained after he was disciplined for comments about management “tyranny” on his account with Facebook Inc. The NLRB general counsel’s advice division sided with Bentonville, Arkansas-based Wal-Mart and recommended on July 19 dismissing the case because the comments were “griping” and not protected by law, the study found. The case has been closed.

 

‘Stay Homicidal’
In a case against Lee Enterprises Inc., the police reporter at the company’s Arizona Daily Star posted complaints on Twitter Inc.’s site about his newspaper’s headline writers and comments about crimes, such as, “You stay homicidal, Tucson,” and “What?!?!?! No overnight homicide?” according to an April 21 memo from the NLRB. He was warned and fired.

The publisher didn’t violate law by firing the employee because the postings weren’t related to workplace conditions or seeking to engage co-workers to talk about employment, the NLRB’s legal advice division said.

Bobbie Jo Buel, executive editor of the Star, declined to comment on the findings or the firing.

An NLRB office in Memphis, Tennessee, also dismissed a case on June 30 against a Wal-Mart distribution center in Searcy, Arkansas, brought by a worker who complained of being demoted after a Facebook posting, according to the study.

 

Earthquake Wishes
In references to Midwest earthquakes, the employee said the building should “collapse while certain members of management were inside.” The NLRB determined the comments weren’t protected speech, according to the study.

“We are pleased with the outcome,” Dan Fogleman, a Wal- Mart spokesman, said in an interview.

In another case cited by the Chamber, an employee at Build.com Inc. said she was fired by the home improvement retailer based in Chico, California, for commenting on possible labor-code violations, according to the study. The posting drew responses from her Facebook followers.

Build.com offered to settle and agreed to tell employees they wouldn’t be punished for posting comments about “terms and conditions of employment on their social-media pages,” according to an April agency statement quoted by the study.

Brandon Proctor, vice president of marketing at Build.com, declined to comment.

“This is absolutely a growing issue for union and non- union alike,” Harley Shaiken, a professor at the University of California at Berkeley who specializes in labor issues, said in an interview.

The Chamber used the federal Freedom of Information Act to gain copies of all charges, complaints and settlements related to social media. The documents showed five cases resulting in settlements, according to the study.

 

Bloomberg News

 

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