The NLRB has been the object of many blog posts in connection to “protected concerted activity”. I have written on it several times. One of the conclusions that many of us have come to is that even if the language engaged in is very coarse the employee may be immune from termination. Fortunately that does not hold in every case.
Must be careful around teens
The case stems from two workers for a teen center in the San Francisco area (those two facts alone make this decision amazing.) These workers were unhappy with their bosses and suggested they would ignore instructions. They wanted to throw parties and take field trips as opposed to conducting the activities required by the center.
Naturally these two workers took to Facebook to voice their objections. Their language was laced with a lot of swear words. So a fellow employee who was one of their connections (not now I am sure) made a screenshot of their conversation and sent it on to the boss. The boss forwarded it to HR and asked that the employees’ rehire letters be rescinded. One of the employees then filed a lawsuit saying he had been fired for engaging in “protected concerted activity.”
The judge’s decision
The administrative law judge took a look at case and rendered an interesting decision. First, he said indeed these two employees had indeed engaged in protected concerted activity under Section 7 of the National Labor Relations Act.
Secondly he said they had indeed used coarse language, which by itself is not an eliminating factor. In fact he even quoted other cases that said “Employees are permitted some leeway for impulsive behavior when engaged in concerted activity, as the language of the shop is not the language of polite society” and “…even most repulsive speech enjoys immunity provided it falls short of deliberate or reckless untruth; federal law gives license to use intemperate, abusive or insulting language without fear of restraint or penalty if the speaker believes such rhetoric to be an effective means to make a point.” Those quotes would lead you to believe that the employees were going to be protected.
But, the judge also said “The issue is whether the remarks of Callaghan and Moore were protected under the Act. When an employee is discharged for conduct that is part of the res gestae of protected activities, the question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.” And that was exactly what he concluded. The language used was so bad as to potentially harm the funding chances of the organization and had so spoiled the relationships that the employees were of no value to the organization any more. He recommended that the case be dismissed.
Guidance for employers
Employees are still protected when they engage in “protected concerted activity” so you have to pay attention to what they are saying and about what. But just because it may be protected does not mean they can get away with it if it truly damages the organization. So don’t roll over if it happens.
See also Jon Hyman’s post regarding offensive language.