The National Labor Relations Board (NLRB or Board) recently considered two matters in which employees were discharged for their conduct at work. In one case, the employee said that the company's response to safety complaints at a shooting range was "bullshit."
On May 1 and 3, 2023, the NLRB issued rulings that make it more difficult for employers to terminate an employee who has an outburst at work. The rulings give employees more freedom for heated comments about working conditions whether they are made to managers, on social media or on the picket line. The rulings recognize that when an employee has an outburst while engaging in protected activity, the Board will look at the specific setting in which the outburst took place. Misconduct that occurs while engaging in protected activity is more likely to be protected than in other settings. The Board noted that the elevation of civility "gives employers dangerous discretionary power over employees whenever they exercise their statutory rights in opposition to the employer's interest." The Board noted that the National Labor Relations Act (NLRA) does not require employees to be "civil" when exercising their right to engage in concerted activity to change workplace conditions. Using this standard, the Board ordered that the employee who made charged comments to the safety manager had to be reinstated and made whole.
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