As we have reported on this blog before, the National Labor Relations Board (“NLRB”) has taken the position that employees who post criticisms of their supervisors on Facebook are engaged in concerted activity that is protected under the National Labor Relations Act (“NLRA”).  Now, tweets made on Twitter are also coming under scrutiny.

Specifically, the NLRB has threatened to file a complaint against Thomson Reuters because it claims that Reuters illegally reprimanded a reporter for posting a message on Twitter that was critical of management.  According to a recent story in the New York Times, this would be the first NLRB action against a company involving the use of Twitter.  (See Steven Greenhouse, Labor Panel to Press Reuters Over Reaction to Twitter Post, N.Y. Times, Apr. 6, 2011, at http://www.nytimes.com/2011/04/07/business/media/07twitter.html.)  It certainly won’t be the last.

Deborah Zabarenko, who is an employee at Reuters, sent the following tweet to Reuters after a manager asked employees to comment on how Reuters could be the best place to work: “One way to make this the best place to work is to deal honestly with Guild members.”  (See N.Y. Times article.)  Ms. Zabarenko is the leader of the Newspaper Guild of New York, Local 31003, CWA (the “Guild”) at Reuters.  Reuters and the Guild have been engaged in contract negotiations for several months, and the negotiations have been heated.  The two parties are set to continue bargaining before a federal mediator on April 28, 2011.

In an interview with the New York Times, Ms. Zabarenko said that the bureau chief called her at home the day after the tweet to express that Reuters has a policy that employees are not to say anything that would damage the company’s reputation.  She told the New York Times that she “felt kind of threatened” and “thought it was some kind of intimidation.”  A Reuters spokeswoman told the New York Times that it was surprised by the pending complaint because it did not believe that Ms. Zabarenko had ever been disciplined.

The NLRB has indicated that it will file a complaint against Reuters on this issue and other issues on April 29, 2011, if the parties do not reach informal settlement before then.  This obviously puts some additional pressure on Reuters as it prepares to resume negotiations.

As we have noted before, employers should reexamine their social media policies in the wake of these recent complaints to ensure that the policies do not restrict their employees’ rights to discuss working conditions outside of work.  In addition, if employees do use social media to express negative views about the company, the company must exercise caution in responding to ensure that they are not charged with engaging in retaliation.  Although some speech is not protected, such as harassing speech or untrue allegations, employers should exercise caution when addressing the same.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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