Dorsey Work Watch

What happens when an employee starts yelling at the boss, makes profane social media posts about work, or engages in other “abusive conduct?”  In many cases, employers can follow their own policy and impose discipline if appropriate.  But, where profanity and heated outbursts come up in the context of complaints about the terms and conditions of the employee’s job, the issue quickly becomes far more complicated. On May 1, 2023, the National Labor Relations Board (“NLRB” or the “Board”) released a decision addressing employee outbursts in Lion Elastomers, LLC, 372 NLRB No. 83.  Overturning a 2020 decision which itself overturned several prior NLRB decisions on employee outbursts, the Board in Lion Elastomers, LLC reinstated a series of tests to determine when and how an employee’s workplace outbursts can be actionable. What employee rights were involved in the decision? Most employees have a right to engage in “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”).  That means employees have the right to, among other things, discuss the terms and conditions of their employment with others, engage in union-related activity, and, where appropriate, go on strike.  The rights afforded to employees under Section 7 are not, however, absolute.  A long line of cases address when an employee may lose the protection of Section 7 by engaging in “abusive conduct,” such as vulgarity, name-calling, or other outbursts.  For more information, see our prior posts on Concerted Activity in 140 Characters or Less, and a Profanity-Laden Rant Against a Supervisor (and others). How has the NLRB decides whether an employee outburst constitutes Section 7 concerted activity? Over time, the NRLB adopted a number of tests for determining when an employee steps outside of the protection of Section 7.  The prior tests, based on the decisions in Atlantic Steel, Clear Pine Mouldings, and Pier Sixty, sometimes considered the totality of circumstances, the nature of the outbursts, whether the outburst was provoked, or whether the outburst was coerced.  In 2020, however, the NLRB overruled these various tests and held that rather than examine the circumstances of the employee’s outbursts, the test should be the employer’s motive.  In that case, General Motors, LLC, 369 NLRB No. 127, the NLRB held that test that should be used is whether the employer was motivated by an anti-union animus or whether it merely sought to enforce its anti-profanity policies. One presidential transition and two NLRB appointments later, the Board shifted course.  The Board’s May 1, 2023 decision in Lion Elastomers, LLC overturned General Motors, LLC, in effect reinstating the Atlantic Steel, Clear Pine Mouldings, and Pier Sixty tests.  The Board’s lengthy explanation for its turn of course rejects General Motors as a sharp departure from federal law, and incongruent with the policy underlying the NLRA.  Specifically, the Board read heavily into language from the United States Supreme Court acknowledging labor disputes “are ordinarily heated affairs,” and that an employee’s Section 7 rights are not necessarily dependent on an employer’s anti-union bias. What is the NLRB’s current standard? So where does that leave employers today?  The NLRB’s Lion Elastomers, LLC decision provides a short rule: “[C]onduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context.”  That means employers can’t strictly apply their profanity or obscenity policy as written if the conduct at issue touches on some conduct protected by the NLRA.  To provide an easy example: an employee who curses at the boss during a union negotiation meeting is probably engaged in protected activity, and therefore protected by the NLRA. Employers must examine what kind of protected activity is at issue.  For different situations—such as picketing, negotiations, or off-work social media usage—the NLRB has adopted different standards.  If employee conduct on the picket line is at issue, employers should consider whether, under all the circumstances, non-strikers would have been coerced or intimidated by the picket line conduct under the Clear Pine Mouldings standard.  If the issue involves outbursts towards management, the Atlantic Steel test requires employers to consider:  (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices.  And, where the “abusive conduct” involves social media, employers need to consider “the totality of the circumstances” under Pier Sixty. What should employers do now? All this to say that employers should be cautious when dealing with potentially abusive conduct by an employee that could be part of NLRA protected activity.  To be proactive, employers should take a few key steps: Implement a Clear, Written Policy. As always, employers should have a written policy governing offensive or vulgar language in the workplace.  The policy should inform employees of the rules regarding the use of profanity in their interactions with customers, clients, or other members of the public, colleagues, and superiors, and the policy should make the consequences for violations clear. Enforce the Policy Consistently and Uniformly. Having a policy is great, but it’s just as important to implement the policy fairly.  Failures to enforce anti-profanity policies in the past can tie an employer’s hands when faced with conduct that may be clothed in NLRA protection.  Importantly, consistent enforcement includes ensuring managers and supervisors comply with the policy. Avoid Limiting Protected Activities: The enforcement of a policy against profanity in the workplace must be balanced against an employee’s right to engage in NLRA protected activity. For employers, that means carefully considering the context in which the objectionable conduct occurs: is there any angle of the conduct or language which touches on an employee’s Section 7 rights, or is the conduct unrelated and distinct from any concerted activity? NLRB rules generally go back-and-forth during different presidential administrations.  For now, the Board’s decision in Lion Elastomers, LLC restores the pre-2020 status quo for employers with respect to abusive employee conduct.  Once again, employers must ensure they balance their own interest in maintaining workplaces free of profanity or abusive conduct against the legitimate rights of an employee to engage in concerted (and sometimes heated) activity, which may involve profanity.  

A bartender is told by his employer, in violation of state law, that he must share tips with other employees. He refuses to comply and is fired. The state law in question says he can sue for being required to share tips, but doesn’t say anything about suing because he was fired. Does the law effectively provide a “wrongful discharge” claim for the bartender, even though no such claim is expressly written into the statute and despite Minnesota’s strong adherence to the rule of at-will employment? The answer, provided in the recent Minnesota Supreme Court decision in Burt v. Rackner, Inc., 2017 Minn. LEXIS 629 (Oct. 11, 2017), comes as something of a surprise. Its broader implications for the at-will rule, however, remain to be seen. At-will employment is so firmly established in Minnesota law that it seldom receives a second thought. The rule in Minnesota, as in the overwhelming majority of states, is that employment relationships are terminable by either the employee or the employer, at any time and without advance notice, and for any reason or for no reason at all (just not for an unlawful reason). Put another way, discharging an employee is actionable only if it implicates an exception to the general at-will rule. For the most part, the exceptions are based either on contract or statute. Contractual exceptions include individual employment contracts, collective bargaining agreements in unionized workplaces, and even employment handbooks or workplace policies (although careful drafting normally provides that handbooks and policies do not abrogate the at-will rule). Statutory exceptions include discrimination laws, “whistleblower” acts, and other laws defining employee “protected conduct.” If the conduct is protected by statute, then the law will typically state that the employee can sue if he or she is fired for engaging in such conduct. Further, some states recognize public policy exceptions to the at-will employment doctrine. But the bottom line is that at-will employment remains the norm. That norm, however, may be subtly changing in Minnesota. In Burt, a divided Minnesota Supreme Court held that the Minnesota Fair Labor Standards Act (“MFLSA”), Minn. Stat. §§ 171.21-.35, allows employees to sue for wrongful discharge when they refuse to share tips, even though the statute says nothing explicitly authorizing such a claim. The case may be viewed as the only logical way to enforce the statutory requirement that employers in service industries or with tip-generating businesses cannot require employees to share tips with each other (although employees are free to do so voluntarily). Yet the underlying rationale for the Court’s decision could have significant effects on the at-will employment doctrine in Minnesota. The plaintiff in Burt worked as a bartender, earning tips in addition to his regular wage. At some point, his employer allegedly told him “that he needed to give more of his tips to the bussers, and that there would be consequences if that did not happen.” Nevertheless, the plaintiff refused to share his tips. A few months later, he was told that his employment “was being terminated because [he] was not properly sharing his tips with other staff.” Unable to find alternative employment, the plaintiff sued for wrongful termination. The District Court dismissed his case, but the Court of Appeals reversed. In a 5-2 opinion, the Minnesota Supreme Court held that through the language of the MFLSA, the state legislature had expressly created a cause of action for employees who are terminated for refusing to share tips. Specifically, the Court relied on two provisions to find an express cause of action: Under Minn. Stat. § 177.24, subd. 3, No employer may require an employee to contribute or share a gratuity received by the employee with the employer or other employees or to contribute any or all of the gratuity to a fund or pool operated for the benefit of the employer or employees. This section does not prevent an employee from voluntarily sharing gratuities with other employees. The agreement to share gratuities must be made by the employees without employer coercion or participation . . . . And under Minn. Stat. § 177.27, subd. 8, An employee may bring a civil action seeking redress for a violation or violations of sections 177.21 to 177.44 directly to district court. According to the Court, because § 177.24 prohibits employers from requiring employees to share tips, it necessarily also prohibits employers from terminating employees who refuse to do so. The Court concluded that the mere threat of termination qualifies as “requiring” an employee to take an action. And given that § 177.27 authorizes civil actions to redress any prohibited conduct under the MFLSA, the Court held that the plaintiff had a viable claim against his employer for wrongful discharge. But even if the Court’s logic is compelling (the statute would provide little protection if any employee could be fired for refusing to share tips), it goes beyond the exact statutory wording, which does not mention termination or any action for wrongful discharge. Indeed, Chief Justice Gildea authored a dissenting opinion, taking aim at the majority’s interpretation of the relevant statutes. The dissent emphasized the majority’s apparent disregard for longstanding precedent allowing the legislature to abrogate the at-will employment doctrine only with express wording or necessary implication. This critique was particularly apt because other provisions in the MFLSA contain express language authorizing causes of action for wrongful discharge—language that Chief Justice Gildea noted was absent from §§ 177.24 and 177.27. If the Legislature had wanted to create a wrongful discharge remedy for violations of the tip-sharing law, it could have used similar language, but did not do so. So what are employers to take from Burt? For starters, they cannot require tip-sharing, nor can they terminate employees who refuse to share tips. The more difficult issue is how the decision could erode at-will employment in Minnesota generally. Although the sky is not yet falling, Burt should give employers pause. It reflects the willingness of a majority of the Supreme Court to recognize a wrongful discharge remedy (at least where there is a compelling logic for such a remedy) even if it is not explicitly described in the statute at issue. As Chief Justice Gildea wrote in dissent, Burt opens the door for employees to allege claims for wrongful discharge just by invoking “any MFLSA provision that imposes a requirement on an employer—and indeed, virtually any statutory provision that imposes a requirement on an employer.” Now, more than ever, it is critical that employers stay apprised of the legal requirements imposed on them by state and federal laws. It is equally critical that both in-house and outside employment counsel keep an eye on how Minnesota courts interpret and apply Burt in the years to come.

Social media has created a minefield of concerns for both employees and employers. The news is full of stories of employees documenting their questionable off-duty conduct on social media, or posting comments containing racist or derogatory remarks. Often, the employer—or sometimes, the rest of the online community—will demand that the employee be fired. In such a scenario many employers may be wondering: What could prevent an employer from lawfully terminating an employee based on social media activity, and what steps can employers take to best handle these situations? Recent examples abound: Last year an employee of a large corporate bank was terminated following a racist rant on Facebook. Throngs of customers contacted the bank, threatening to close their accounts if the employee was not fired. The employee was promptly terminated for her “reprehensible” comments. Many readers may remember the notable case of a public relations director in 2013, who, before boarding a flight to South Africa, tweeted: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” Despite her 170 followers, her tweet immediately went viral worldwide. By the time she landed in South Africa eleven hours later, her manager had informed her that she’d been fired. Most recently, on October 31, 2017, a marketing director for a government contracting firm was terminated after a photograph of her flipping off President Trump’s motorcade went viral on social media. In the wake of the September “white nationalist” marches, numerous Twitter accounts were created to identify and draw attention to the participants. Many employers have been inundated with demands that these individuals be terminated, and have been quick to distance themselves from the employees. In this situation, there are several things employers should consider. First, be aware of state and federal laws which may affect the way you might react to employee social media use. For example: Off-duty Conduct Laws. Some states have laws prohibiting employers from disciplining or firing employees for activities pursued in their personal time—including the use of lawful substances such as medical marijuana and tobacco. Protection of Political Views. A few states (and some cities and counties) protect employees from discrimination based on their political views or affiliation. In such a state, terminating or disciplining an employee for purely political social media activity or for political conduct outside the workplace could be illegal. NLRB Protections. The National Labor Relations Act and similar state laws protect employees’ rights to communicate with one other about their employment. More specifically, employees have the right to engage in “protected activity” regarding their workplace—sharing grievances and organizing online in protected activity. Under these laws, an employee who is fired for posting online complaints about their wages, benefits, tip sharing, management, or hours, etc. could have a strong legal claim. As we noted in a recent post, this protection can be quite robust, leading to the reinstatement of a union employee fired after posting: “F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” (He was saved by the last sentence, which linked the rant to his union activities.) Prohibitions on Retaliation. Beyond NLRB protections, many employment laws protect employees from retaliation for claiming that their rights have been violated. If an employee complains online about workplace discrimination, harassment, or other legal violations, that employee may be protected. However, at the end of the day most states are “at-will” employment states, meaning both employers and employees are free to terminate the employment relationship at any time with or without reason. Therefore—if an employer determines that an employee’s speech outside the workplace runs counter to the employer’s values or public image, the employer could have solid grounds for termination. While this is not the case in all states (for example, Montana), in the vast majority of states employment is considered at-will. So long as the aforementioned laws are taken into account, chances are good that an employer can safely terminate an employee for objectionable conduct online. While consulting with legal counsel prior to any such termination is recommended, employers can take the following affirmative steps to provide proper procedure in the event of an employee’s worrisome or unacceptable online behavior. Social Media Use Policy. Adopt a policy, included in your handbook, informing employees that their personal social media accounts, online networking account, blogs, and general online posts could get them in trouble at work. Explain what types of content could create problems, including harassing and bullying behavior or discriminatory or offensive language. This can include online conduct that may be associated with the company or which could cause serious interpersonal problems in the workplace. Be Consistent. As with all employment policies, be consistent when enforcing your social media policies. If a female employee is terminated for posting objectionable material on the internet but a male employee is not for the same or similar conduct, the female employee may have a cause of action for sex discrimination. Always enforce your policies consistently to protect your company.