On the heels of the well publicized settlement this past February between the Hartford office of the National Labor Relations Board (“NLRB”) and AMR of Connecticut resulting from the NLRB’s complaint that the employer unlawfully terminated an employee in response to the employee’s criticism of her supervisor on Facebook, another social media issue has caught the attention of a nearby NLRB regional office.
Specifically, the New York NLRB regional office (Region 2) has stated its intent to issue a complaint, absent settlement, against Thomson Reuters based upon the employer’s allegedly overbroad policy that restricts employees from making statements disparaging the company. It appears that the employer’s policy came to light after the employer invited employees to post suggestions on its Twitter account about how to make Reuters a better place to work. In response, one employee tweeted that the company should “deal honestly” with union employees. Soon thereafter, the employee was contacted at home by her supervisor and advised of the company’s policy prohibiting employees from making statements that would damage the company’s reputation. Reuters denies that it disciplined the employee in response to her Tweet, but the employee claimed that she felt threatened and intimidated by the employer’s response.
The overarching issue runs deeper than social media policies and extends to any employment policies that could be interpreted to restrict the right of employees to engage in concerted, protected activity under Section 7 of the National Labor Relations Act. While the case law in this area continues to develop, the bottom line is that employers, now more than ever, must exercise caution in creating and enforcing policies that restrict an employee’s ability to engage in activities such as discussing or complaining about working conditions, the company, or management personnel. Even policies created with the simple intent to promote a positive work environment, for instance by requiring employees to act civil and demonstrate respect for one another, have been called into question by the NLRB on the theory that protected activity is not always civil and to require such could chill union activity. What may seem to an employer at first glance to be a standard employment requirement, not intended to inhibit union activity, may be deemed unlawful.