Elon Musk has become a treasure trove of “what not to do moments” on Twitter for U.S. employers. Recently I blogged about Musk’s twitter exchange dust up with Haraldur Thorleifsson, a disabled Twitter employee, with Musk appearing to question whether Thorleifsson was disabled and to criticize his work ethic. Musk subsequently apologized to Thorleifsson, claiming that he had been given bad information, but not before the tweet generated a storm of public criticism of Musk and created potential legal risks for Twitter.

For the latest installment of Elon Musk “what not to do” moments, we fast forward to the past, so to speak. On March 31, 2023, the U.S. Fifth Circuit Court of Appeals (Fifth Circuit) upheld on appeal a decision issued by an administrative law judge of the National Labor Relations Board (NLRB) that a series of tweets by Musk back in May 2018, constituted an “unlawful threat” under the National Labor Relations Act (NLRA) because Tesla employees could reasonably have concluded from the tweets that Musk was threatening economic reprisals if those employees supported the formation of a union. 

Musk sent the tweets under his personal Twitter handle “@elonmusk,”in the middle of what the Court described as a “tense union campaign” by the United Auto Workers (UAW) at Tesla’s electric vehicle manufacturing plant in Freemont, California, in response to another user, who had asked Musk, in part, “How about unions?” Musk replied:

Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.

In tweets posted several days later, Musk stated, as the Court described it, that he believed that the “UAW does not have individual stock ownership as part of the compensation at any other company,” and as such, Tesla employees would lose stock options if they unionized because “UAW does that.” None of Musk’s tweets were in response to posts by Tesla employees.

What did the NLRB and Fifth Circuit conclude that Musk did wrong? Plenty. Under the NLRA, Musk was free to communicate to Tesla employees any of his general views about unionism or any of his specific views about a particular union, including the UAW, provided that his communications did not contain a “threat of reprisal or force or promise of benefit.” However, the NLRB found, and the Fifth Circuit upheld, that Musk’s tweets went beyond that. Tesla employees could have understood Musk’s tweets as tacit threat to end stock options for Tesla employees as retaliation for unionization. Threats of reprisal in response to unionization violate the NLRA.

For employers, the lesson to be learned from this Elon Musk “what not to do moment” is to be careful what you say on social media, even if your comments are not directed at or intended for your own workforce. The risks of not being careful are increasing. Unfair labor practice charges against employers have gone up by more than 16% over the last six months, according to the NLRB.

If you have questions about your policies and practices to ensure compliance with the National Labor Relations Act or other workforce laws, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.