The National Labor Relations Board (NLRB) zealously champions the rights of workers; whether permanent employees or contingent workers. Retaliation against concerted action by dissatisfied workers is prohibited and protected by the NLRB. However, the agency recently was reminded that it is not often easy to find the boundary between appropriate expressions of dissatisfaction and unjustified attacks on a Company’s brand.
Today’s workers can ruin their employer’s reputation by openly discussing their grievances regarding the work environment in online forums and sites like Glassdoor. Companies branded as one of the worst employers face problems with hiring qualified workers and attracting customers. When this puts heavier workloads on the remaining employees, their dissatisfaction could grow to even higher levels and make it difficult for everyone, including the employer, to operate amidst their disapproval and hostility.
Take the case of AT&T. AT&T’s service technicians were disputing the extension of their contracts with AT&T. In a novel way of protesting against the employer’s actions, their union asked the workers to wear T-shirts which proclaimed their unhappiness with AT&T when visiting the homes of customers to provide their services. The shirts, sporting vertical bars, proclaimed that the technician wearing it was a ‘Prisoner of AT$T’ – replacing the ampersand with a dollar to indicate the company’s money-minded ways. The shirts also had the words ‘Inmate #’ to one side.
Outraged at the idea of having customers meet such unhappy employees, AT&T insisted that the shirts cannot be worn and prohibited their use because words like prisoner and inmate could prove alarming to many of the customers who could mistake them for escaped convicts, especially in view of an unsavory home invasion crime committed by escaped convicts in the same state. AT&T suspended 183 workers who had customer-facing roles for that day and put a ban on the further use of the shirts.
When the union filed an unfair labor charge [AT&T Connecticut, 356 N.L.R.B. No. 118 (2011)] the NLRB ruled that such prohibition violates the law which protects workers’ right to criticize of speak about disputes with an employer. The NLRB also did accept that a customer would be alarmed by a technician who arrives by prior appointment, carrying their company ID card and using an AT&T truck. It also disregarded all possible claims against the damage the employees could have caused to the reputation of AT&T with their actions. So, the NLRB found the T-shirts acceptable and found fault with AT&T, startling the entire business community with its harsh decision.
However, the U.S Court of Appeals for the District of Columbia found the employer’s reaction appropriate and permissible under the circumstances and reversed the earlier decision made by the NLRB. This ruling is a rare occasion of limiting the scope of employee rights under the National Labor Relations Act and the protections it offers to employees. In doing so, the ruling judge clearly invoked a need to employ common sense when resolving legal disputes. The judge applied the special circumstances exception, which includes unreasonably interfering with an employer’s public image, in supporting the actions of AT&T in suspending workers wearing the offensive T-shirt for one day.
In this age of online social interaction, the court of public opinion often seems to weigh more heavily than the actual legal system. Companies take steps to acquire potentially defamatory domain names that can be used as forums for employee (or customer) complaints. Some companies employ a team of individuals whose sole duty is to scour the internet for any negative references. While these actions are – at best – limited in preventing disgruntled workers from literally complaining to the whole world, companies can turn to the courts when the expression of those complaints steps over the line.
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