Section 8(a)(1) of the National Labor Relations Board (NLRB) Act protects employees who are terminated after they voice their opinion about working conditions. Employees do not lose this protection if, in response to the termination, they yell profanities at the employer.
The NLRB recently reinstated an employee after he had been fired from a used auto-dealership. This employee protested certain working conditions at a company meeting. The employer responded by suggesting the employee leave the company if he didn’t like it there. The employee proceeded to yell obscene profanities in the middle of the meeting directly at the employer. The employer then, needless to say, terminated the employee.
The only way an employee in this situation will lose the protection of Section 8(a)(1), is if the particular outburst is menacing, physically aggressive, or belligerent. Courts will use an objective test in determining whether the outburst amounts to a threat. However, there is a strong policy rational in protecting employees who protest working conditions. The standard to prove an employee physically threatened the employer is a high one and extremely difficult to meet.
Employers must be careful in their decision to fire an employee after that employee uses profane language. If you have questions or concerns about terminating an employee under similar circumstances, please contact an employment law attorney.
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