Obscene Insults May Not Be Protected Activity Under the NLRA
In a recent Advice Memorandum, an Associate General Counsel at the National Labor Relations Board (“NLRB”) determined that an employer did not violate the National Labor Relations Act (NLRA) when it terminated an employee for calling his supervisor an obscenity involving the F-word on LinkedIn.
The employee argued that his employer’s reliance on his LinkedIn post as the reason for his termination was a pretext for terminating him because he separately engaged in discussions about overtime with his co-workers. The NLRB held that there was no evidence that the employer was aware of the overtime discussions. Instead, the NLRB found that the employer terminated the employee for violating its Electronic Communications Policy, which prohibited posting material online that is “obscene defamatory, harassing or abusive” to any person or entity associated with the company.
While the NLRB noted that the language in the employer’s policy prohibiting “harassing” material online was potentially overbroad because it “arguably could be construed to prohibit protected online content,” the NLRB determined that the employee’s LinkedIn “joke” was not protected under Section 7 of the NLRA regardless of whether it could be considered “concerted.”
Takeaway for Employers: While the NLRB has taken a very expansive view regarding what constitutes protected activity under Section 7 of the NLRA over the past year, even the NLRB has its limits. Employers still need to give careful consideration to whether online conduct by an employee is protected under the NLRA. But discipline or termination of employees for online misconduct may be warranted and permissible under certain circumstances.