While it may come as a surprise, the NLRB has long held that employees are sometimes entitled to use profane language while engaging in labor activities. In recent years, the Board has found that employee speech was protected where:
- An employee posted online that his supervisor was a “NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!!” while also noting an upcoming union election.
- An employee used racist language while on a picket line during a strike.
When evaluating profane (and even overtly racist) language, the Board weighs various factors to determine whether the profane statements are not so egregious so that the employee will lose protection of the NLRA. The Board often notes the high emotional context of labor disputes to justify vulgar behavior of employees. In recent years, Courts of Appeals have been questioning whether such activities should remain protected under federal labor law, including in both cases mentioned above.
With this context, the Board has requested briefs in a case that involves, among other things, an employee’s statement that his supervisor could “shove it up his ass.” Usually, an invitation for briefs signals that a majority of the Board is ready to overturn or modify precedent. Given that the Board has selected a case with an egregious statement like this, it may be a safe bet that the NLRB will be unveiling a new standard for profane language in the near future.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.