First on the chopping block: When cursing out the boss loses its protection
In September, the National Labor Relations Board (NLRB) added another chapter to a long-running tug-of-war: When can an employer discipline a worker who blows up at management (sometimes with profanity) while also engaging in “concerted activity” (e.g., employees banding together to raise concerns about pay, safety, or working conditions)?
NLRB back-and-forth
In Lion Elastomers, the employer claimed it didn’t terminate the employee for concerted activity (the employee was a long-term and active union member) but instead because he was hostile and attempting to create an intimidating environment both during and after a safety meeting.
In 2020, the NLRB first sided with the employee, ruling the firing broke the National Labor Relations Act (NLRA). To get there, the NLRB used a “context-specific” test, weighing factors like where the outburst happened, what it was about, how extreme it was, and whether the employer provoked it.