The National Labor Relations Board’s (NLRB) recent scrutiny of social media policies for compliance with the National Labor Relations Act (NLRA) has alarmed many employers - including non-union employers. Two recent developments in this area add fuel to an already heated debate over employer actions based on employees’ use of social media.

The first case is Lee Enterprises, Inc. d/b/a Arizona Daily Star. The Daily Star newspaper did not have a social media policy, but urged its reporters to use social media, including Twitter, to disseminate information to the public. After deciding that its crime/public safety reporter had gone too far with his unprofessional, sexually inappropriate, and pro-violence tweets, including one in which he called the reporters on a local television station “stupid,” the newspaper’s managing editor admonished him to refrain from engaging in any further social media postings. The reporter was later terminated, after which he filed a charge with the NLRB, contending that his termination violated the NLRA.

The NLRB General Counsel’s Office acknowledged that, “in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7 [of the NLRA],” but nevertheless concluded that the newspaper terminated him for violating workplace policies and disregarding its repeated warnings to cease his unprofessional tweets. The General Counsel’s Office concluded that “it would not effectuate the purposes and policies of the [NLRA] to issue a complaint where the statements were directed to a single employee who was lawfully discharged,” and recommended dismissal of the charge.

If employers presumed, based on the Arizona Daily Star outcome, that the NLRB had backed down from its aggressive stance regarding employers’ social media policies, they would be mistaken. On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United of Buffalo, a nonprofit social service agency, unlawfully discharged five employees who complained about their working conditions on their Facebook accounts. After one employee questioned how hard the staff worked to help the agency’s clients, several employees chimed in on her Facebook status, defending their job performance and blaming workload and staffing issues for any unmet client needs. After learning about the posts, Hispanics United fired all of the employees who participated in the flame war. The NLRB issued a complaint, alleging that the Facebook dialogue was protected concerted activity under the NLRA - a discussion among coworkers about the terms and conditions of their employment and undertaken for mutual aid and protection. The case is set for a hearing before an administrative law judge on June 22, 2011, absent settlement (which seems to be the trend in these sort of cases).

These two cases illustrate that employers may discipline employees for social media misconduct, such as disclosing confidential and proprietary information, engaging in “textual harassment,” or libeling competitors, but must scrupulously avoid instituting or enforcing social media policies that impinge on employees’ rights to discuss the terms and conditions of their employment, e.g., wages and working conditions. One thing is for certain…we haven’t heard the last of this topic from the NLRB.