Employer Violated NLRA When Terminating Employee for Harassment

The National Labor Relations Board has found the termination of an employee who violated his employer’s harassment policy to be unlawful. Neil Goldsmith and Chris Johlie (from law firm Franczek Radelet) provide background:

“… the employer was in the midst of a decertification campaign when several female employees lodged a written complaint over vulgar, harassing and threatening statements they found scribbled on union newsletters in the break room. The statements were meant to coerce employees into voting for the union in the upcoming decertification election, and the evidence pointed to a specific employee as the culprit. Management questioned the employee about the statements and the employee first lied, but later confessed. The employer then terminated him for lying during the investigation and for his statements.”

Not so fast, said the NLRB:

“[The NLRB] found that the employee’s statements and his false denial were protected, and the employer’s act of discharging him for engaging in such protected activity violated the NLRA. In response to the employer’s argument that the employee’s offensive statements were so egregious as to lose the protection of the NLRA, the NLRB reasoned that they were merely ‘impulsive’ and not premeditated, and therefore did not lose their protected status.”

What does the ruling mean for employers? Three takeaways, from Mark Theodore (law firm Proskauer):

  • “When confronted with alleged misconduct that may be closely related to otherwise protected activity, employers should focus the investigation on the conduct and not the broader activity. But, be aware that the NLRB may still take the position that the investigation itself is unlawful, as it did here.
  • In this case, the employee outright lied on two occasions (during the investigation and after he had mistakenly called the company vice president), the Board would have found such dishonesty to be protected.
  • Know that the Board’s analysis naturally gives weight to the subjective intent of the perpetrator and appears to give little or no weight to the people reporting the problem.”

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