August 7, 2011

NLRB sees increase in social-media complaints

WASHINGTON — A Walmart worker said he was disciplined for using Facebook to rail against a supervisor's "tyranny."

WASHINGTON — A Walmart worker said he was disciplined for using Facebook to rail against a supervisor's "tyranny."

A crime reporter in Tucson 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 released last week by the U.S. Chamber of Commerce, the nation's largest business lobbying group.

"This is absolutely a growing issue for union and non-union (workers) alike," said Harley Shaiken, a professor at the University of California at Berkeley who specializes in labor issues.

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," said Eastman, the Chamber's executive director of labor-law policy. "Employers are concerned about where the board may go."

The board has yet to set a policy on whether workers can discuss their 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 wrongly fired an employee for criticizing her supervisor on Facebook, Eastman said. The NLRB'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.

The ambulance company settled in February, agreeing to revise "overly broad rules," the agency said.

"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.

"Employees in the old days gathered at the water cooler," said Marshall Babson, an attorney and a former member of the NLRB. "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."

Protected speech?

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 Facebook account.

The NLRB general counsel's advice division sided with Wal-Mart and recommended on July 19 dismissing the case because the comments were "griping" and not protected by law, the study found.

In a case against Lee Enterprises Inc., the police reporter at the company's Arizona Daily Star posted complaints on Twitter'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 said.

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

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.

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

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