Profanity from Employees: Surprise, Sometimes Allowed

angry guy
July 18, 2017

In an era when it seems that anything goes, can an employee get away with using obscenities against his or her boss? What if the employer learns of an employee’s Facebook post attacking a supervisor, announcing, “Bob is such a nasty *&%# - don’t know how to talk to people!!!!!  *&%# his mother and his entire *&%# family!!!!  What a LOSER!!!!”

Most, if not, all employers would terminate the employee for his obscenity-laced tirade against his supervisor. But, surprisingly, sometimes it may be unlawful to terminate the employee, even for the f-bomb laden rant. The answer to this question is often controlled by the labor laws administered by the National Labor Relations Board (NLRB).

After the employee who authored the “Bob” rant was terminated for his Facebook post, he filed an unfair labor practice charge challenging his discharge as being unlawful under the National Labor Relations Act. The NLRB ruled on the discharge in Pier Sixty, LLC, 362 NLRB No. 59 (2015). Employers would be surprised to find out that the NLRB found the discharge for the obscene posting violated the law and ordered the employee reinstated with back pay.

The NLRB used the totality of circumstances test to determine if the discharge was proper.  Among the factors deemed important was evidence that the:  

  1. Supervisor was hostile against employees who joined together to complain about working conditions;  
  2. Employee had been provoked by offensive statements by the supervisor;  
  3. Conduct was impulsive, out of frustration and stress, not deliberate;  
  4. Posting was on the employee’s private Facebook page and not introduced into the work environment or to customers;  
  5. Posting was written while the employee was on a break;  
  6. Subject matter of the post was work related – treatment by the supervisor; and  
  7. Employer tolerated widespread profanity by the supervisors.

Based on these factors, the NLRB concluded that the employee did not lose protection of the National Labor Relations Act because of the profanity.

 
The takeaway is that employers need to be careful in responding to provocations by employees: 
  1. Stay away from visceral responses.  
  2. Guessing is not an option.   
  3. Recognize that the obvious or logical answer might be the wrong answer under the law.  
  4. Employment decisions are often controlled by government policy, not logic.

It is important to know how to respond when the employee acts against workplace norms or wants to be treated differently than every other employee in the workplace.

Contributed by Donald Scharg of Bodman law firm.

View the on-demand webinar “Me in the Workplace: Behavior, Disabilities, LGBT, NLRB & Drugs” with Don.