The National Labor Relations Board ordered reinstatement of a nurse who was fired for making vulgar sexual comments and jokes. Specifically, the Respondent hospital showed that it terminated the nurse after she “engaged in grossly offensive, profane, and intimidating workplace behavior that provoked an unprecedented number of her co-workers to complain of a hostile work environment.” Additionally, the hospital received complaints about the nurse taking company supplies for personal use, taking excessively long breaks, failing to follow “safety-oriented” procedures, and behaving in a threatening manner toward colleagues. However, according to the Board, the hospital did not have the right to terminate the nurse because (1) her conduct was protected concerted activity since her comments were made on behalf of herself and other nurses expressing concern about the process for evaluating nursing fellows, and (2) inappropriate language was part of the culture at the workplace.

I have noticed a trend of this type of activity by the Board. Employers that discipline or terminate employees pursuant to company policy are challenged (and often overruled) because the offending employee conduct somehow violates an employee’s Section 7 rights. This occurs with foul language policies, like above, as well as insubordination, threats and violence, social media, workplace safety, and other similar policies. Companies should consult legal counsel before terminating employees to ensure that the termination does not run afoul of the Board’s new, expansive interpretation of Section 7 of the National Labor Relations Act.