Abusive Communications Are Not Acceptable In The C-Suite Or On The Plant Floor

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Vinson & Elkins LLP

In recent weeks, because of the remoteness of our work forces, we have seen an increased incidence of abusive written communications between employees. It’s fair to say that we all have certain frustrations with our current situation, but in the past, when we all worked in the office or plant together, we could often work out those frustrations through face-to-face conversation. In face-to-face conversations, it is more difficult to say rude or abusive things to other employees. Unfortunately, a similar social barrier does not seem to be present when employees write emails or text messages.

I suggest that you send a communication to every employee, from your CEO to your newest plant employee, that abusive communications are simply not acceptable. Remind your employees that there are a lot of headlines these days about executives, managers, supervisors and employees losing their careers because of abusive communications. This may also be a good time to remind your employees about any employee assistance program you have that they could contact to deal with frustrations and anger before acting out those feelings costs them the job.

Thankfully, my recommendation does not require the same amount of labor law qualifications as it might have in the past, following a National Labor Relations Board decision issued this Tuesday in a case concerning General Motors. Over the past several years, in our upside down world of labor law, what would get a CEO fired would not similarly get hourly employees fired as long as those employees connected their abusive statements to a complaint concerning the terms and conditions of their employment. There have been extreme cases where employees verbally abused supervisors’ families in social media or used racist slurs. Under the prior administration, the Board would often order employers to rehire the abusive employees because of its conclusion that the employees’ protected activity, complaining about terms and conditions of employment, could not be separated from the abusive content of their communications.

In the recent General Motors case, the facts indicated that the employee in question, over the course of several meetings, used profane language toward managers, threatened them, and played loud, explicit music on his phone to interrupt the conversation. The administrative law judge, citing to the Board’s prior rulings on these types of communications, found that General Motors’ discipline against the employee—namely, a series of suspensions—constituted an unfair labor practice. The current Board overturned that opinion and the prior cases that supported it in its decision.

In any circumstance where an employer may discipline an employee for what he or she says in their communications, the employer should consider the context and the history of that employee. For executives, there may need to be a discussion as to whether careers should be lost over the communications. The same goes for hourly employees. However, the employer still must keep in mind the sensitive times in which we live with regard to certain types of communications. They must also make sure that they are applying any rules equally. However, with this new ruling from the Board, I am happy to report that at least employees cannot now shield their abusive communications by claiming that they are simultaneously asserting labor law rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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