Now I Have to Allow Insubordination and Verbal Abuse Too?

by Foley & Lardner LLP

Several weeks ago, in both a tongue-in-cheek and concerned fashioned, we wrote about a federal court decision that concluded an employer had to tolerate an employee’s admitted theft as a reasonable accommodation for her disability. As part of that commentary, we observed that government agencies such as the Equal Employment Opportunity Commission are clearly pushing to expand employee and restrict what seem to some as logical reasons for terminating employees – such as wanting to stem employee theft. We have also reported that the Obama-era National Labor Relations Board has not been shy about overturning its own precedents and taking controversial measures to increase employee protections. Two more recent rulings from the Board continue this trend, with one suggesting employees now have protections allowing them to engage in insubordination and mistreatment of customers.

In the first decision, the Board found that an employer unlawfully terminated an employee who, during a meeting with the company owner, launched into a profanity-laced insulting tirade, and only after the employee said such things did the owner decide to terminate his employment. After an appeal to a federal appellate court, the Board reconfirmed its earlier ruling that though there was no dispute that the employee’s conduct was menacing and threatening, the employee had protections against termination because he had previously complained to other employees about wages. And though it is concerning an employer would have to continue employing someone who has cursed out the boss, at least in that case the Board followed long-existing precedent and arguably did not go way out of its way to rule in favor of the employee.

More concerning is a recent decision by a Board administrative law judge who asserted that an employer could not lawfully maintain policies prohibiting insubordination and rude treatment of customers. Though administrative law judge decisions do not establish Board precedent, the decision is nonetheless noteworthy both for its somewhat amusing underlying facts (involving allegations of an employee being fired for complaining about a rigged bikini contest) and the fact that the employee used her discharge claim as a way to attack unrelated employer policies in the Employee Handbook. In response, the administrative law judge accepted the employee’s invitation and attacked the employer’s policies against insubordination and mistreatment of customers as being too broad. Regardless of how broad that language may or may not have been, the rationale behind the ruling unavoidably raises the specter than an employer would have to permit some degree of insubordinate conduct or employee mistreatment of customers. Not exactly a comforting thought for employers.

In light of these recent developments and the fact that a change in direction does not appear in the offing, employers can be forgiven feeling frustration as to how they can reasonably manage their workforce and business if they have to permit employees to steal, curse out their bosses, be rude to customers, and refuse to follow directions. Perhaps we can hope for some common-sense rounding out to these current decisions thinly veiling an agenda seeking to expand employee protections at the expense of what many employers may see as legitimate business interests. Regardless of whether that happens, what employers can certainly expect for now is that if they feel they are operating on a tilted playing field, they will be well served to think through carefully policy and discipline decisions and work closely with their trusted legal advisors to remain abreast of policy issues and evaluate disciplinary decisions.

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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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