The Ninth Circuit, known as the most liberal and employee-friendly federal circuit in the nation, recently overrode an NLRB ruling on employee protections. In this case, an employee complained legitimately about working conditions, but lost his protection when he started berating his manager, calling him plenty of F-word names we cannot repeat here and also telling him that he was stupid, nobody liked him, and that everybody talked about him behind his back. During the employee’s outburst, he stood up, pushed his chair aside, and told the manager that if he fired him the manager would regret it. The manager then fired the employee.
The Court reminded us that in order for an employee to lose NLRA protections, it would consider these factors:
- The place of the discussion
- The subject matter of the discussion
- The nature of the employee’s outburst
- Whether the outburst was in any way related to a fair labor practice
The Board is required to balance those factors carefully. In the end, the Act permits some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain order and discipline. As the Court reminded us, if an employee is fired for denouncing his supervisor in obscene, personally degrading, and/or insubordinate terms, the employee may lose the protection of the National Labor Relations Act. When the Court looked at the language, the physically aggressive nature of the employee, and his flat-out belligerence, they decided that he had lost his protections.
As mentioned in previous posts, the NLRB has now waded into social media waters with these conversations. So far, its decisions have been very pro-employee, as was the underlying decision in this case.
Click here to read the case.