NLRB Rules that Cussing Out Employer May be OK
by David Briggs
Have you ever had an employee just lose his cool and lay into you with a profanity-laced tirade? Many employers who have had that pleasure have fired the insubordinate employees on the spot.
In one of its most recent decisions, the National Labor Relations Board has made terminating those potty-mouthed employees more difficult. The case began when Plaza Auto Group in Arizona, a non-unionized car dealership, fired Nick, a car salesman. Nick had only been with the dealership for a couple of months, but during that time questioned a number of Plaza’s practices, including whether he was being paid commissions appropriately and whether he should be getting minimum wage. Plaza was generally dismissive of the complaints and the owner, Tony, told Nick that if he did not like the way things worked there, he could leave.
After more of Nick’s grumbling, Tony met with Nick to discuss his attitude and told him to stop being so negative. Nick used the meeting as a chance to complain about his pay. Tony told Nick to quit if he did not trust how dealership paid him. Then, according to the NLRB, “[Nick] lost his temper and in a raised voice started berating [Tony], calling him a [bleep, bleep], and a [bleep bleep], and [a bleep]. [Nick] also told [Tony] that he was stupid, nobody liked him, and everyone talked about him behind his back. During the outburst, [Nick] stood up in the small office, pushed his chair aside, and told [Tony] that if [Tony] fired him, [Tony] would regret it.” Naturally, Tony fired Nick on the spot.
We all know it is illegal to terminate an employee for complaining about wages. But, Plaza argued that it did not fire Nick for complaining about his commissions. Rather, it fired him for being insubordinate and disrespectful.
Certainly Nick was complaining about a protected activity – complaining about wages and working conditions. But, the bigger question was whether Nick’s outburst made him lose protection under the NLRA. The Board decided that Nick did not lose his protection and found Plaza liable. Under the NLRA, an employee – even a non-unionized employee – is allowed to be insubordinate to a manager when talking about wages, hours or working conditions, so long as the employee does not go too far. Although the Board acknowledged the outburst was disrespectful, it found that Nick did not lose his protection under the law, in part because the location was private and Nick did not threaten violence (after all, he only pushed the chair over).
Common sense seems to tell us that a profanity-laced tirade against an owner is likely to land you in the unemployment line regardless of where the tirade occurs. But, like many things with employment laws, common sense should be checked at the door.
What can you take away from this new case? Termination decisions should not be taken lightly. Employers should have a process to determine when to terminate an employee. The employee’s personnel file should be reviewed along with any other documentation. We typically recommend having someone that has not seen the file before (another manager or owner, for example) look at the file and see if the documents support the termination decision. Employers should also look for the legal red flags. Those red flags come in a lot of forms: complaining about wages or harassment based on a person’s age, race, sex, religion, sexual orientation, or other protected class; or for filing a safety complaint or a workers’ compensation claim. The list could go on (and on and on).
In conclusion, the NLRB understands that this new ruling will require employers to tolerate conduct that employers certainly do not approve of. But, before jumping into a rash termination decision, slow down and ask for help if you need it to ensure that your company does not end up in the same legal mess as Plaza.
David Briggs advises employers on employment law compliance and defends employers in state and federal court. He can be reached at firstname.lastname@example.org.