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.