WTF?!

WTF already?! As in, “where’s the fairness?” Time for an acronym update from our favorite government acronym, the NLRB.

You will certainly remember that we have recommended asking yourself three questions before determining whether the NLRB would have a problem with you disciplining one or more employees: First, did the employees engage in “concerted” activity? Second, if yes, was that concerted activity “protected” under the National Labor Relations Act? And third, if yes to the first two questions, did the otherwise protected concerted activity lose its protection under the Act because it was so offensive or reckless? 

The vast majority of the NLRB’s decisions and guidance have focused on the first two questions. However, we are now starting to see the NLRB beginning to shape its position on the third question, and the parameters within which otherwise protected activity may still keep employees from success under the Act.

Which brings us to the Board’s latest decision in In re Pac Bell Tel. Co., where telephone technicians wore buttons and stickers that contained the phrases “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The union argued that they had the right under the Act to wear such union insignia, while the employer contended that any such right was lost because the messages were vulgar and offensive.

The NLRB sided with the employees.  It found that acronyms such as “WTF” and “FTW” did not stand alone, but were followed immediately by non-vulgar phrases that gave relatively innocuous meaning to the acronyms:

“We find that the possible suggestion of profanity, or ‘double entendre,’ . . . is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product[.]”

“Cut the Crap,” or, as I often like to refer to it, “CTC,” was also deemed protected under the Act because the NLRB felt that “crap” had no “scatological content.”

WTF?

Employer Take Away:   What should you as an employer take away from this development?

Whether the speech is through social media, or on t-shirts, hats, or buttons, your company must still toe the line between permissible discipline and allowing speech that you might not generally like. As we’ve said in the past, there is going to be a high threshold before the NLRB will determine that protected concerted activity has lost its protection under the Act. Pac Bell teaches us that double entendre with a mere “suggestion of profanity” may not be enough, and that there will likely need to be a very clear (and sole) offensive statement expressly made.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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