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The National Labor Relations Board (NLRB), in a recent advice memorandum issued by the general counsel's office, has held that the termination of an Arizona Daily Star public safety reporter over his tweets on Twitter did not run afoul of Section 8(a)(1) of the National Labor Relations Act.
What largely did this reporter in was the fact he had been warned several times before about his inappropriate and unprofessional tweets. From the ABA Journal article on the advice memo:
In 2010, the reporter criticized one of the paper's headlines via Twitter. Human resources encouraged him to discuss his concerns with colleagues rather than his Twitter audience, and later the reporter's managing editor stated that he should not make comments on social media that could damage the paper's reputation.
The reporter refrained from tweeting about his newspaper, which encouraged its reporters to use Twitter but had no written policy about it. And the employee went on to tweet a variety of comments about Tuscon's homicide rates. He also retweeted a local television news station Twitter post, noting a misspelled word in it.
The station complained to the newspaper, and the managing editor told the reporter to refrain from tweeting until she met with senior management. She noted that the reporter's Twitter screen name and biography referenced his employment at the Daily Star, and linked to the newspaper's website
In response, the reporter changed his screen name, deleted some of his supervisors from his list of followers and protected his tweets so only people with his approval could view them. Nevertheless, the reporter was fired later that month.
In ultimately upholding the termination as lawful, the NLRB concluded: "The charging party's conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment."
The lesson for employees: You do not have an absolute right to say whatever you'd like in any forum because the law is only so protective as it also has to take into account the employer's best interest. The NLRB is responsible for the neutral administration of federal labor laws and if it determines an employee infringed too heavily upon an employer's interest, it will say so. There are productive and protected items of speech and then there are blatant abuses of such speech. This reporter's speech was the latter and not the former. And, even if you take steps to hide your speech from employer's, it can still lead to your termination as you never know who will turn you in for your speech.