News & Analysis as of September 19, 2024

Offensive Language

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Hiring & Firing refers to the process of recruiting, interviewing and offering employment and the process of evaluating performance and dismissing employees. Hiring & Firing is a highly regulated area and can create tremendous liability for employers who fail to properly adhere to acceptable employment practices. Some of the potential pitfalls in this area stem from discriminatory hiring practices, improper performance evaluations, and retaliatory firings. less -

EntertainHR: Michigan’s Miscue—Is Your Company Ready for a Social Media Scandal?

FordHarrison on 6/7/2023

Only a few days after being hired by the University of Michigan’s football program as the assistant director of football recruiting, Glenn Schembechler (son of longtime Michigan head coach Bo Schembechler) resigned after his...more

Employer Discipline Lessons In DC Circ. Vulgar Protest Ruling | Insights & Events

Bradley Arant Boult Cummings LLP on 9/22/2022

A ruling of the National Labor Relations Board in favor of an employee fired for using vulgar language on a company bulletin board was affirmed in August by the U.S. Court of Appeals for the District of Columbia Circuit. ...more

D.C. Circuit Affirms NLRB Vulgar Graffiti Ruling

Proskauer - Labor Relations Update on 8/15/2022

On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the...more

NLRB: Employer’s Good-Faith Belief in Employee’s Misconduct Insufficient to Justify Terminating Employee Engaged in Protected...

Proskauer - Labor Relations Update on 12/15/2020

As we have often discussed, there is a fine line between protected and unprotected activity. Profane outbursts, deliberate misconduct, or highly-disruptive strikes may fall outside the protection of the NLRA, subjecting...more

Speak No Evil: The NLRB Drops “Setting-Specific” Standards for Cases Involving Abusive Employee Speech Made in the Course of...

Pullman & Comley - Labor, Employment and... on 7/29/2020

The Trump-era National Labor Relations Board has struck again. On July 21, 2020 in General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020), the NLRB overruled longstanding precedent and rejected “setting-specific”...more

OFCCP Week In Review: July 2020 #4

DirectEmployers Association on 7/27/2020

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they...more

Employers May Not Have To Retain Racists, Sexists And Belligerently Disobedient Employees After All-The NLRB Appears Ready To...

Sheppard Mullin Richter & Hampton LLP on 9/12/2019

It is lawful to discipline and even discharge an employee for making inappropriate or offensive remarks in the workplace. Indeed, current anti-harassment and anti-bullying laws may require an employer to take adverse action...more

NLRB Upholds Employee’s Use of Offensive Language in Protest of Employer’s Overtime Policy

Franczek P.C. on 8/15/2018

In Constellium Rolled Products Ravenswood, LLC, the National Labor Relations Board recently ruled in a 2-1 decision that the employer unlawfully discharged an employee who had written “whore board” on an overtime sign-up...more

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?

Bradley Arant Boult Cummings LLP on 8/17/2017

Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws....more

#Fired: Post a Tweet, Lose Your Job

FordHarrison on 8/23/2016

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former...more

In Fresenius, the NLRB Admits It Was Wrong . . . Sort Of!

Ogletree, Deakins, Nash, Smoak & Stewart,... on 7/1/2015

On June 24, 2015, the National Labor Relations Board (NLRB) issued a new decision involving allegations that an employer had unlawfully discharged an employee who had scrawled sexually-oriented obscenities and threatening...more

Is Posting Obscenities Aimed At Supervisor On Facebook A Terminable Offense?

Allen Matkins on 5/12/2015

Maybe not, according to a recently published NLRB decision. In Pier Sixty LLC, a majority of a three-member NLRB panel affirmed an ALJ’s decision that the employer violated Section 8(a)(1) and (3) of the National Labor...more

Fenwick Employment Brief - April 2015

Fenwick & West LLP on 4/29/2015

Ninth Circuit Reviews Enforceability of Waiver of Right to Reemployment - Does California Business and Professions Code § 16600 prohibit employees from waiving their right to reemployment with prior employers? The...more

NLRB determines vulgar Facebook posts protected concerted activity

Robinson & Cole LLP on 4/21/2015

The National Labor Relations Board (NLRB) determined that Pier Sixty LLC, a New York catering service, violated federal labor law by firing an employee server after he posted a Facebook message protesting supervisory abuse...more

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