Many people have fanaticized about telling their boss what they really think about him or her. Fortunately, most employees have the good sense not to write down what they are thinking about their employer. In situations where companies are confronted with angry, aggressive or threatening rants from disgruntled employees, common sense would lead one to believe that the company could take appropriate disciplinary action in response. However, a new decision from the Second Circuit Court of Appeals reminds employers that in certain circumstances, such rants can be considered protected concerted activity.
In NLRB v. Pier Sixty, LLC, the employer was facing an aggressive and acrimonious unionization campaign. A few days before the union vote, an employee believed that his supervisor had spoken to him in a demeaning manner. During a work break, the employee posted a Facebook message stating that, “Bob is a NASTY MOTHERF_____ don’t know how to talk to people‼‼‼ F___ his mother and his entire f______ family‼‼ What a LOSER‼‼ Vote YES for the UNION‼‼‼”
The message was publically accessible, and the employee had friended a number of his co-workers. When the company learned of the message, it terminated the employee for making threatening and obscene comments about his supervisor and his family. He filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that he was terminated in retaliation for engaging in protected concerted activity under Section 7 of the NLRA. The NLRB agreed, issuing a decision broadly protecting such conduct in the absence of a specific threat of harm against the supervisor. The Second Circuit affirmed the NLRB’s decision, but somewhat narrowed the scope of its holding.
The court noted that even when an employee engages in concerted activity, in some situations he or she can lose legal protections if they act in an excessively abusive manner. In this case, in the context of a tense unionization campaign, the Second Circuit concluded that the employee’s conduct did not cross this line. The comment was not made in person to the supervisor, and did not disrupt the workplace. While at the outer boundaries of protected conduct, the court believed that it remained protected in this specific context.
For employers, although the company lost the appeal, the court’s decision is tied to this very fact-specific analysis. In more ordinary situations where an employee reacts in a very hostile or aggressive manner when dissatisfied with a work issue, employers have considerably more leeway to take disciplinary action based on this reaction. However, this decision should remind employers that they cannot automatically assume that an employee’s use of vulgar or insulting language gives them an automatic right to discipline or terminate him or her. Any such decision should be made carefully, in concert with legal advice.