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Supportive Replies to Co-Worker's Profane Email Were Protected Activity

    Client Alerts
  • November 01, 2019

As noted previously in EmployNews, Section 7 of the National Labor Relations Act protects concerted activity by employees who complain about terms and conditions of employment. Obviously, email and social media did not exist when the NLRA was adopted, and the National Labor Relations Board and federal courts have had to interpret these worker protections in the context of new communications technologies. This month, the Second Circuit Court of Appeals affirmed a board decision declaring employees’ supportive replies to a co-worker’s email to fall within these Section 7 rights.

In Mexican Radio Corp. v. NLRB, a group of employees complained to management about a new supervisor’s conduct and unsanitary conditions in the restaurant. One of the employees eventually resigned and sent management an email containing profanities about the supervisor and lack of response to her complaints. She copied three other employees on the email, and those co-workers replied in support of the author. Within two days, the employer terminated the three co-workers, who filed unfair labor practice claims with the NLRB.

The Second Circuit affirmed the board’s decision in favor of the complaining workers, concluding that the email replies were protected concerted activity. Section 7 rights equally apply whether the comments are made at the restaurant or through electronic media. The fact that the original email contained profanities does not impact the rights of co-workers who support the author’s complaints over working conditions.

In recent months, the NLRB has somewhat relaxed its view on employers’ rights to respond to certain profane or threatening actions made in conjunction with strikes or union organizing activities. This case makes clear that both the NLRB and federal courts continue to extend Section 7 protections to written communications, even if they contain some profane or obscene comments.