Employment Law Blog

News, trends and analysis in employment law and HR

Jun 20, 2014

Employee’s outburst protected despite threats and profanity

Labor RelationsWage and Hour 

A car dealership terminated a car salesman who, during an outburst, hurled expletives and insults toward the owner of the dealership, but the National Labor Relations Board (NLRB) ruled that the salesman was engaging in protected “concerted activity.”

A car dealership terminated a car salesman who, during an outburst, hurled expletives and insults toward the owner of the dealership, but the National Labor Relations Board (NLRB) ruled that the salesman was engaging in protected “concerted activity.” The salesman called the owner a  “f***ing crook,” and an “***hole.” He also told the owner that if he fired him, he would “regret it.” However, because these insults were made in the context of broader complaints regarding wages and sales commissions on behalf of all the sales staff, the Board said his conduct was protected.

The National Labor Relations Act (NLRA) protects employees’ right to engage in “concerted activity for mutual aid and protection” related to wages, hours and working conditions. This law applies to both union and non-union workplaces. “Concerted activity” means that two or more employees (or one on behalf of others) band together to make a protest or complaint regarding wages, hours or working conditions. Nevertheless, the NLRA does not protect employees who engage in physically aggressive or menacing behavior. Here, the employer contended that the employees was physically aggressive when he suddenly pushed back his chair and stood up during the confrontation with the owner. It also said that the threat that the employer would “regret it,” if it fired the employee was menacing behavior. The NLRB disagreed, saying that while the outburst was “intemperate” there were no threats of physical violence (Plaza Auto Center, NLRB, May 2014).

Tips: During the Obama administration, the NLRB has pursued an expansive view of what conduct constitutes concerted activity. Employers have to be especially careful when disciplining employees for any conduct or speech that could be related to wages, hours and working conditions. For additional guidance, check out Vigilant's Legal Guide, “Handling Workplace Protests and Complaints” (1238), and be sure to contact your Vigilant staff representative before taking disciplinary action. Learn more about membership with Vigilant today, and how you can benefit from unlimited employer counsel for a flat monthly fee.

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