The worst kept secret in HR: The National Labor Relations Board (NLRB) is doing whatever it can to “protect employees speech rights” — or, as many employers see it, give workers the green light to say pretty much whatever they want about their employers.
The latest example involves Pier Sixty LLC, a catering company, and Hernan Perez, a server for the company.
The NLRB just ruled that Pier Sixty violated the National Labor Relations Act and illegally fired Perez for participating in “protected concerted activity.”
Under the act, an employee engages in protected concerted activity when he or she acts with other employees in an attempt to improve working conditions.
Usually, this form of activity manifests itself in the form of workers complaining about their employer or managers together.
The Pier Sixty case follows this familiar narrative. But the troubling thing for employers is that in its ruling, the NLRB blurs the line between what it considers “protected speech” and flat out insubordination that employers will want to quickly stamp out.
Harsh criticism of manager
The actions that got Perez fired involved him taking to his personal Facebook page and posting the following comment about his manager (Bob):
“Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!! F*** his mother and his entire f*****g family!!!! What a LOSER!!!!”
Not surprisingly, when the employer caught wind of this Facebook rant, it terminated Perez — as most employers probably would.
Perez then filed an unfair labor practice charge against Pier Sixty — such charges can be levied against all employers, unionized or not.
And, to many employers’ chagrin, the NLRB sided with Perez.
Pier Sixty was then ordered to reinstate Perez to his former seniority and pay him any wages lost as a result of his termination, with interest.
Inmates running the asylum?
How did the NLRB justify taking such a seemingly unbelievable move?
Warning: This won’t appease employers. But here’s what it said:
“… while distasteful, the Respondent (Pier Sixty) tolerated the widespread use of profanity in the workplace, including the words “f***” and “motherf****r.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.”
So basically, because the employer allowed employees to use off-color language on the job, it couldn’t punish Perez for the vulgarity of his comments toward his manager.
What’s more troubling, in light of other recent protected speech rulings by the NLRB, it seems unlikely the board would even tolerate many policies banning workplace profanity in the first place.
Bottom line: This ruling takes a little more power out of the hands of employers to stamp out worker subordination.
How much longer before the inmates are allowed to completely run the asylum?
Cite: Pier Sixty LLC
