Bosses should be wary of punishing profane and insubordinate employees, according to one prominent law firm.
The National Labor Relations Board (NLRB), a federal labor arbiter that oversees employee relations and union elections, has issued a series of rulings in recent years protecting insubordinate employees. Cursing out one’s boss may violate social norms and common sense, but the agency says it can also be construed as protected activity.
In May, an NLRB regional judge ordered a California Hooters to rehire a waitress who intimidated and cursed out her colleagues and bosses over an allegedly rigged bikini contest. In June, the board ruled that a Starbucks employee who told his boss to "go [expletive deleted] yourself" could not be fired because he was pro-union.
Attorneys with Holland & Knight, a prominent management-side labor law firm, said that the NLRB’s willingness to protect the profane carries many implications for employers. Reacting to an employee’s rude outburst could open the company up to federal litigation and allegations of unfair labor practices.
"Clearly, employees are free to discuss, and even complain about, their terms and conditions of employment; this is a core right protected by federal law, whether or not the employees are represented by a union," Holland & Knight attorneys wrote in a blog post. "However, the Board is now frequently condoning incredibly objectionable behavior that is combined with an alleged exercise of protected activity."
The NLRB’s rulings extend beyond the act of swearing. The board has used these incidents as a springboard to change the way that companies manage their employees. The Hooters ruling not only reinstated the individual employee; the regional official also ordered the restaurant to rewrite its rulebook for employees.
The agency forced the franchise to abandon standards that required workers to be respectful of customers and colleagues. The judge ordered management to put up a sign saying, "WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers of the Company."
Holland & Knight says that managers and companies will have to tread lightly on its wild workforce if it is to protect itself from litigious employees.
"With respect to the potential problems caused by the Board's suspicious view of present day generally acceptable statements of uncontroversial behavioral norms, there does not appear to be an easy antidote," the attorneys said. "This follows a disturbing trend in the Board's decisions that attack sensible, long-standing management standards of conduct."