Tweet! You're fired!

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.