Is Shouting Profanities Protected Under Federal Law?

Could your employees really have a right under federal law to shout profanities at management, or even owners? According to the National Labor Relations Board (NLRB) — the federal agency charged with overseeing employer/union relationships under the National Labor Relations Act — the answer is “yes.”

The NLRB recently ordered reinstatement of a used car salesman who was terminated for an angry outburst in which he pushed his chair aside and berated the company’s owner, calling him a “f***ing mother f***er,” a “f***ing crook” and an “asshole,” and telling him he was “stupid, nobody liked him, and everyone talked about him behind his back.” The employee was meeting with the company’s owner to lodge complaints about the company’s employment practices, including issues concerning breaks and pay. Although the owner hadn’t planned to terminate the employee at the meeting, he did so after the employee’s outburst, which the owner believed was offensive and threatened his and his employees’ safety.

The NLRB, however, found the employee’s actions protected by Section 7 of the act, which gives all employees — not just unionized employees — the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the NLRB, the employee did not lose Section 7’s protections because his conduct was not menacing, physically aggressive or belligerent. The NLRB reached this conclusion based on its findings that the outburst was not highly disruptive (because it occurred behind closed doors in a manager’s office), the discussions related to the terms of conditions of employment, the outburst may have been provoked because the owner had told the employee to stop complaining and had invited him to quit if he did not like the policies, the outburst did not include threats of physical harm or any actual touching, and the employee did not have a history of threats or physical harm.

This case is just one of many in the last several years in which the NLRB has focused its attention on employee rights to engage in “concerted activities” under Section 7 of the act. All employers, whether unionized or not, should tread carefully when disciplining and discharging employees who might be acting to address collective employee concerns, even if the employee’s reaction is inappropriate and offensive.

This article also appeared in RV Focus: A Newsletter for the RV Industry Professional, authored by lawyers who understand the RV industry and take a practical look at legal issues that can affect a company.