Hunton Employment & Labor Perspectives

Two recent rulings have labor law observers questioning where the line is in disciplining employees for making offensive or obscene comments toward their employer. Seemingly at odds are a recent Second Circuit ruling finding such behavior is protected activity under the NLRA and a recent NLRB ruling finding the use of profanity towards management is not protected.

In National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017) the employer terminated an employee for a Facebook post where the employee wrote the following regarding a supervisor and an upcoming union election: “Bob is such a NASTY MOTHER F**KER don't know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.” The Second Circuit deferred to the NLRB’s ruling that the post was protected concerted activity and noted that the employer had engaged in unfair labor practices which provoked the employee’s Facebook post and had consistently tolerated the use of profanity by employees in the past. While the Second Circuit agreed that the employee’s conduct was not so egregious as to lose the protection under the NLRA, the court emphasized that the employee’s post sat at the outer-bounds of protected, union-related comments.

In Harbor Rail Services Co., 2017 NLRB LEXIS 211 (NLRB April 28, 2017), the employer terminated an employee who yelled at management, in a work area, “F**k you and f**k this job!” while complaining to co-workers about working conditions. While finding the employee was engaged in protected activity, the ALJ concluded that the employee’s conduct was so egregious that it lost the protections of the NLRA because the employee’s insubordinate use of profanity towards management occurred in a manner that stopped more than a quarter of the employer’s workforce from working so that they could listen to the outburst. The ALJ emphasized that an employee’s right to engage in protected concerted activity must be balanced against the employer’s right to maintain order and discipline in the workplace.

The two decisions appear to be at odds in analyzing similar conduct, but key distinctions explain the outcomes. First, in Pier Sixty, the closeness to a union election, the employer’s provocation of the employee’s conduct, and the employer’s history of tolerating profanity were significant factors pushing the employee’s social media post into NLRA-protected territory despite its profane nature. By contrast, in Harbor Rail, the employer had not engaged in any unfair labor practices and had no history of allowing employees to direct profanity towards management.  Second, when determining whether offensive conduct is protected by the NLRA, the NLRB utilizes a more employee friendly “totality of the circumstances” approach to analyze off-duty, offsite communications with other employees on social media and utilizes the four-factor Atlantic Steel test when assessing face-to-face confrontations with management. The Atlantic Steel test typically favors employers in situations where they have not provoked an employee’s conduct by committing unfair labor practices.

Going forward, employers should consult with counsel to carefully consider whether an employee has engaged in protected activity before firing them over offensive or profane conduct. Employers should also review employee handbook policies regarding workplace conduct and nondisparagement, and should be consistent in enforcing such policies.