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.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on November 7, 2011, in Performance and Discipline, Unions and Labor Law and tagged . Bookmark the permalink. Leave a comment.

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