Maybe. Maybe not. The National Labor Relations Board routinely holds that the law gives employees some leeway for, shall we say, “unprofessional” behavior when engaged in activity that is protected by the National Labor Relations Act. In two different cases, the NLRB has held that the remarks described in the headline of this blog were actually protected activity under the law because the employees who made them were protesting the employer’s approach to certain terms and conditions of employment. These are hardly the only examples of such cases, either. Employers must be aware of the fact that any employee who takes action to try to improve wages, hours or working conditions (and that can include protesting discipline, objecting to new workplace rules and policies, or grousing about a particular manager) may be engaged in protected activity under the labor laws (if the employee can show a connection between his actions and at least one other employee). And that means disciplining the employee for unprofessional behavior may be unlawful.
This is just one way the labor laws can sneak up on the unwary manager or human resources professional. Whether it’s the NLRB’s position on handbook policies, social media, workplace investigations, access to company property, or many similar items, the labor laws can serve as a trap for employers in unionized and non-union workplaces alike. One of the best ways to avoid this trap is to provide education for your human resources professionals and other management team members on some of the more sneaky elements of the labor laws. Seyfarth lawyers routinely provide a one-hour training course on these subjects (“The Impact of Labor Laws on Union and Non-Union Workplaces”), and yes, we have grown accustomed to the crowd calling us “Stupid Morons” (and worse!) when we describe how the labor laws can sometimes impede what otherwise would seem like logical and prudent management actions.