Cursing, fighting, and screaming could be protected under the NLRA

Too bad workplaces don’t come with the technology that allows employers to replace curse words with the bleeps so often heard during profanity-laced tirades on television. Then, maybe, the National Labor Relations Board (NLRB) wouldn’t be called on to settle disputes such as one that occurred after a bikini contest at a Hooters restaurant in California. 

That dispute was the subject of an administrative law judge’s decision in May that labeled key parts of the restaurant’s employee handbook unlawful—sections that, among other things, warned employees not to be insubordinate and instructed them to refrain from discussing tips and disrespecting guests.

The decision in the Hooters of Ontario Mills case is among a string of cases in which the NLRB has tackled the question of how far legal protections go when employees behave badly.

Protected activity
Section 7 of the National Labor Relations Act (NLRA) ensures that employees covered under the act—regardless of union status—are protected from termination or other adverse action when they act together for mutual aid or protection, what’s known as protected concerted activity. In addition, Section 8(a)(1) of the NLRA prohibits employers from interfering with the employee rights guaranteed in Section 7.

But what if angry employees—within earshot of coworkers and customers—loudly scream profanity while complaining about an employer-sponsored bikini contest they considered rigged? Can the employer lawfully fire employees for engaging in such behavior? They were acting together on a matter relating to the terms and conditions of their employment, but does the law protect them if they end up in shouting match?

Protections expanding
Clear-cut answers to such disputes may not exist, but a former NLRB attorney says the trend the current Board seems to be following is one of expanding protection under the NLRA. Frank F. Rox is an attorney in Atlanta who now serves as an NLRB consultant with the Lehr Middlebrooks & Vreeland, P.C. law firm, but he formerly served as an NLRB senior trial attorney for more than 30 years.

Rox says the administrative law judge who heard the Ontario, California, Hooters case was following a trend in which workplace rules on social media, rudeness, and inappropriate attitudes often are being called too broad to be acceptable under the NLRA. The current NLRB is frequently finding that such workplace policies can be construed to have a chilling effect on the ability of employees to engage in activity protected by law.

Acceptable rules?
Employers may claim that reasonable rules are necessary to maintain order and civility in the workplace, but “this labor board is not really buying into that,” Rox says. “They’re trying to expand their reach.”

Rox says that under the current NLRB environment, once it’s decided the employees are engaging in protected concerted activity, the employer has to establish “really outrageous conduct, not just a little profanity.”

In the Hooters case, the restaurant sponsored a bikini contest featuring female employees. According to the case decision, the employees weren’t compensated for the time spent preparing for and participating in the competition. Also, the restaurant’s marketing coordinator set up the contest and named two of her friends as judges. She also competed and went on to win the contest and its cash prize.

That’s when the heated exchanges began, although the employee bringing the charge denied that she herself resorted to cursing. Witness testimony indicates other employees did use profanity. The employee bringing the charge was informed in writing that she was terminated because of the verbal altercation and for her social media posts. The letter then listed the provisions in the employee handbook she was accused of violating.

The administrative law judge examined those handbook provisions and proclaimed them overly broad or otherwise impermissible. Here’s a look at the judge’s findings:

• The company had a policy prohibiting employees from discussing tips, which the judge called overly broad because it “precludes employees from exercising their right to discuss their terms and conditions of employment, such as wages, with nonemployees.”

• The company’s rule on insubordination was termed “impermissible” because it was phrased in such a way that it could have a chilling effect on employees’ rights.

• The rule on disrespect to guests was considered “unlawfully overbroad and unqualified.”

• The rule on dispersal of sensitive company materials was ruled “unlawfully overbroad because employees would reasonably believe they are prohibited from discussing wages or other terms and conditions of employment with nonemployees.”

• The rule on conduct affecting the company’s smooth operation, goodwill, or profitability was ruled overbroad because it “restricts rights protected by the Act.”

• The off-duty conduct rule was termed “overly broad and invalid.”

• A rule on discussing the company’s business or legal affairs also was ruled “overbroad and invalid.”

• The rule on employee postings to social media sites was called invalid because employees could construe it as interfering with their rights under Section 7.

• The handbook rule on being respectful to the company, employees, customers, partners, and competitors in social media posts also was ruled as interfering with Section 7 rights.

Advice for employers
The Hooters case isn’t the first time the NLRB has considered employee behavior and the lawfulness of employer policies. The Board has commented on other cases involving employees who angrily curse in the workplace and post disparaging remarks on social media. Sometimes employer policies have been upheld and other times they’ve been judged to violate the NLRA.

But Rox urges employers to consult counsel before disciplining employees in matters that may relate to wages, hours, working conditions, or other terms and conditions of employment.

Employers shouldn’t feel paralyzed, though, Rox says. If an employee is acting outrageously and employees have been fired or disciplined in the past for similar behavior, letting the employee go may be the best option. An employer that has a carefully drafted policy that includes context and a savings clause and isn’t overly broad may be able to safely discipline or fire.

Also, not all workplace disputes will involve protected activity. Rox gives the example of two angry employees cursing at each other because of a personal dispute unrelated to employment. But Rox warns employers not to allow profanity and abusive behavior in some contexts and then discipline employees when the behavior is linked to union organizing or some other protected activity. Discussing the situation with counsel can help prevent trouble.

“We write rules that pass muster, but it’s complicated,” Rox says. “It’s a tricky area that’s not intuitive.”