Many employers would consider a post on social media referring to a management employee using profanity to be insubordination. Nonetheless, a recent decision from the National Labor Relations Board (“NLRB”) has held that under certain circumstances such conduct may be protected concerted activity. The facts giving rise to this decision were that a catering company manager “scolded” servers during an event telling them to move circulate and move. Later in his shift, one employee posted on social media indicating that this manager did not know how to speak to employees. However, in that post, the employee used four letter words attacking not only the manager, but his family. After investigation, the employer terminated the employee for this social media posting.
Employees, whether unionized or non-unionized, have protection under Section 7 of the National Labor Relations Act (“NLRA”) when engaging in protected concerted activity. Under the facts of this case, the NLRB held the postings to be protected. Specifically, the Board determined that this employee’s postings were made on behalf of himself and other employees (concerted activity) and “were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment.” The employer has appealed this decision to the Second Circuit Court of Appeals, whose decision will be persuasive but not controlling on federal courts in Florida and the Eleventh Circuit.
On July 21, 2020 the NLRB issued a Board decision in the cases General Motors LLC and Charles Robinson. These were cases 14–CA–197985 and 14–CA–208242. Beginning on July 21, 2020 the Board explained that "going forward, these cases shall be analyzed under the Board’s familiar Wright Line
standard. In our view, abusive conduct that occurs in the context of Section 7 activity is not analytically inseparable from the Section 7 activity itself."
This means that moving forward, if the General Counsel alleges discipline was motivated by Section 7 activity and a Florida employer contends it was motivated by abusive conduct, causation will be at issue. As in any Wright Line case, the General Counsel will now be required to make an initial showing that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between
the discipline and the Section 7 activity. If the General Counsel has made his initial case, the burden of
persuasion shifts to the employer to prove it would have taken the same action even in the absence of the Section 7 activity.
This is a good reminder to employers that under the current NLRB, even improper conduct by an employee can be protected under the Act if it is tangentially related to concerted activity where employees are trying to protest current working conditions or seek better working conditions. If you have questions about this type of employment matter, please call our office at 1-772-465-5111 or email us here.
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Why you might not want to fire an employee who uses four letter words attacking management
Can an employee use 4 letter words at work? Can you fire an employee for swearing at their boss?