WTF?!

Posted on June 15, 2015 by Michael Schmidt — No Comments ↓

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.

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Are You A Nasty Mother Fu*ker?

Posted on April 2, 2015 by Michael Schmidt — No Comments ↓

I don’t know if you are or aren’t. That’s probably for a different timeforhardselfassessmentlawblog.com (wish I had purchased that domain). However, I do know that your employees apparently can call their manager a nasty mother fu*ker (is the asterisk still really necessary?). Now mind you, it’s not all workplace wild, wild west. But the NLRB continues to speak and your company continues to need to hear it.

Part of the problem lies in the fact that we either don’t know exactly where the line of decorum is, or that line constantly moves. As recently stated in the NLRB General Counsel’s March 18th memorandum, employees can lawfully be prohibited from being discourteous or disrespectful to a customer of yours or to any other member of the entire general public in contact with your company. The memorandum said that your company can also enforce rules prohibiting employees from “making inappropriate gestures” to co-workers, and from “being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor [or] coworker” when such rule is placed in the “context” of rules banning “serious misconduct.” And, employees can be required “to work in a cooperative manner with management/supervision.”

Yet, in the latest episode of the serial “As The NLRB Turns,” we now learn that your employees cannot be prohibited from calling their managers a nasty mother fu*ker. So that isn’t an “inappropriate gesture”?  Not insubordinate or disrespectful, in any context?  That’s the 2015 version of working “in a cooperative manner with management/supervision”?  Huh?

In In re Pier Sixty, LLC, the NLRB affirmed the findings of an Administrative Law Judge that the employer unlawfully infringed on an employee’s right to engage in protected concerted activities based on certain social media posts. The case involved a catering hall and employees who allegedly believed they were treated “disrespectfully and in an undignified manner.” The decision notes that the employee at issue vented his frustration with certain treatment of the company’s servers by posting the following on a personal Facebook page:

“Bob is such a NASTY MOTHER FU*KER don’t know how to talk to people!!!!!  Fu*k his mother and his entire fu*king family!!!! What a LOSER!!!! Vote YES for the UNION.” [Note: the employee wasn’t as constrained to include the asterisk.]

According to the decision, “vulgar language is rife in the Respondent’s workplace, among managers and employees alike.” Maybe that “contextual analysis” is what made the comment less offensive – at least to the NLRB – since the NLRB balanced both sides’ interests before determining that:

“an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.”

Interestingly, there was a lone dissenter who WOULD have found that the “vulgar and obscene Facebook comments lost the Act’s protection” because, among other reasons:

“Even conceding a lack of evidence that Perez intended to engage in or threaten actual violence against McSweeney or his family, the posting reflects a level of animus and aggression directed toward McSweeney personally that goes well beyond the contrasting statements in the record that the employer tolerated and that are also distasteful[.] . . . We live and work in a civilized society, or at least that is our claimed aspiration. . . . Personally directed and insulting statements like Perez’ Facebook posting about McSweeney, his mother, and his family, typically cause irreparable damage to working relationships. It serves no discernible purpose for the Board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.”

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

At least there was a dissent. Still, majority rules, and your company must continue to tread carefully when deciding to take action against an employee for social media posts or activity. Continue to go through the analysis about which we have so often posted. Yes, NLRB precedent says that even concerted discussion about the terms and conditions of the workplace may still lose the law’s protection if the employee was so opprobrious or over-the-top inappropriate in that discussion.  The majority in Pier Sixty shows, however, that the threshold required to prove that is still a high one.

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Too Many People Using Social Media?

Posted on March 17, 2015 by Michael Schmidt — No Comments ↓

Well, maybe there aren’t too many people using social media in general. But, perhaps, that is the lesson to be taken from a recent federal court decision that addressed the intersection of one statute’s purpose and the reality of social media.

Back on October 20, 2014, I posted about a New York Family Court case in which the Judge allowed the use of Facebook to serve notice of a proceeding on another party whose whereabouts could not otherwise be located. Now, in the case of Mark v. Gawker Media LLC, a federal Judge in the Southern District of New York has issued a decision with a slightly different result in a slightly different set of circumstances.

Gawker Media is a wage and hour case that involved notice being sent to “similarly situated” individuals under the federal Fair Labor Standards Act (“FLSA”). Notices are typically mailed to individuals advising them of the nature of the case and their right to join the lawsuit if they choose to do so. Here, plaintiffs’ counsel apparently asked the court for permission to post notices on various social media web sites in an effort to supplement the traditional mailings and reach a potentially larger audience that might include individuals who could potentially “opt in” to the lawsuit. The problem was, however, the argument that the sites “might include” individuals.

The court noted that, while it would contemplate the use of social media as a means to contact potential parties, the request by plaintiffs’ counsel here was “substantially overbroad” and appeared to be “calculated to punish Defendants rather than provide notice of opt-in rights.” Said the court:

“Plaintiffs’ proposal to post notices on websites such as Reddit and Tumblr – and on pages such as “r/OccupyWallStreet” and “r/Progressive” – lacks any realistic notion of specifically targeting its notice to individuals with opt-in rights, and instead would call attention to the lawsuit mostly of individuals with no material connection to the lawsuit whatsoever. The purpose of FLSA notice is to ‘notify and inform those eligible to opt in to the collective action’”

In other words, the FLSA notice provisions are designed to provide narrowly-tailored notice specifically to those individuals whose rights may be at issue and affected by a lawsuit, and to advise those individuals of their right to join. Simply putting word of the lawsuit out for the entire world to see (i.e., through social media sites of mass participation), with only a small subset of the world truly intended to get the notice and learn about the lawsuit, does not accomplish the goals of the FLSA and potentially prejudices the employer.

As the court made even clearer:

“The Court approved use of social media notice on the understanding that such notice would effectively mirror the more traditional forms of notice being used in this case. This generally means that it expected the notice to contain private, personalized notifications sent to potential plaintiffs whose identities were known and [sic] may not be reachable by other means. To the extent that Plaintiffs’ proposals are shot through with attempts to send public-facing notices – such as general tweets rather than direct messages, or publicly accessible groups – they cease to parallel the other forms of notice that the Court has already approved. . . .  Accordingly, Plaintiffs’ request to put into action its proffered plan for social media notice is DENIED without prejudice to Plaintiffs proposing a revised plan that cures the current overbreadth issues.”

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

Courts continue to grapple with the proper balance when it comes to the somewhat informal, yet widespread appeal of, social media in the context of lawsuits. Can (and should) social media be used to benefit the process in many circumstances? Yes. But can one’s plan to use social media in the process be too overbroad? Yes.

Just as we discussed in the context of the discovery of social media in lawsuits, the best way to persuade a Judge to fall on the side of allowing some social media plan into your company’s case is to demonstrate that your plan is narrowly-tailored and serves the underlying purpose of promoting judicial economy and obtaining information or access that could not generally (or easily) be obtained through other means. 

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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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