Employee use of social media remains at the forefront of issues at the National Labor Relations Board.  Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the Agency), the NLRB’s Division of Advice recently issued an Advice Memorandum stating that an employer did not violate the National Labor Relations Act when it terminated an employee for writing “unprofessional and inappropriate” comments on his personal Twitter account.

In early 2010, a “crime and safety beat” reporter for the Arizona Daily Star began posting a series of controversial tweets on his Twitter account – which he independently operated and controlled although it identified him as a reporter for the Daily Star.  His Tweets commented on both his manager’s and his own views of crime (and crime reporting) in Tuscon, including:

  • “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.”
  • “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
  • “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.’”
  • In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”

After the tweet about the paper’s copy editors, the reporter was instructed that, even though the Daily Star did not have a formal social media policy, in the future he was “prohibited from airing his grievances or commenting about the Daily Star in any public forum.”  The reporter, however, continued posting controversial tweets – – leading to his suspension and eventual discharge for tweeting insensitively about homicides and in other manners which drew negative attention to the Daily Star.

Although the reporter claimed he was fired for engaging in activity protected by the National Labor Relations Act, the Division of Advice disagreed.  Instead, it decided that the “inappropriate and offensive” Twitter postings were not protected activities, because they “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

In what should be a warning to other employers dealing with social media issues, the Division of Advice did conclude that the paper’s initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7.  However, since the statement was only made to a single employee and the Daily Star made its decision to discharge based on the comments unrelated to that statement, it saw no reason to issue a complaint on that issue.

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Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.