The Truth About As*holes

Here’s the truth:  we are a litigious society.  For a lot of reasons beyond the scope of this blog, a smarter workforce with ever-increasing access to information and resources continues to file employment lawsuits in record numbers.  The truly legitimate ones aside, many are the result of an interpersonal dispute the employee has with his or her supervisor.  But even when the company “wins” a lawsuit after years of discovery or at trial, the value of the “win” is diminished exponentially by the time and cost of years of litigation.

Here’s the truth:  social media makes it even easier and quicker to say certain things and refer to people by certain names than one might in person.  So when you read about a particular case involving an employee exercising his or her right to engage in “protected concerted activity,” continue to keep in mind that the rules apply quite clearly to social media communications, even when the communications in that case do not necessarily involve social media.  With that, I bring you employment truism # 103: You can’t be an as*hole, but you can be called one.

In Plaza Auto Center, Inc., the employee was a salesman for a used car dealer in Arizona, who had raised complaints during sales meetings about the employer’s policies on breaks, restroom facilities and compensation.  Several complaints and meetings later, the employee apparently lost his temper in a meeting with his manager and two other employees, and called his manager a “fu*king mother fu*ker,” a “fu*king crook” and an “as*hole.”    Whoa, hold on.  Crook’s one thing, but an as*hole too??

Having broken the camel’s back with that straw, the manager fired the employee on the spot, leading to a complaint with the NLRB.  You know the drill by now, and arguably the employee was acting in concerted fashion (i.e., with other employees) about protected issues (i.e., working conditions).  At issue here, however, was the less-interpreted third step of my three-step NLRB firing analysis:  did the employee otherwise lose the protection of the law because of the nature of his outburst?

Here, the Administrative Law Judge found that the employee’s conduct consisted of “obscene and personally denigrating terms accompanied by menacing conduct and language.”  Yet on appeal, the NLRB reversed in a recent decision, since it apparently feels that that is precisely the kind of conduct we want to promote from our employees:

“We conclude that affording the Act’s protection to [the employee] here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees.  Thus, [the employee’s] outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meetings in the manager’s office where the outburst occurred; and no employee overheard [the employee’s] obscene and denigrating remarks to the owner.”


Employer Take Away:   What should you as an employer take away from this development?

Don’t be an as*hole.

But if you are one, please let your employee tell you that you are one.

Alternatively, after your employee tells you that you are one, open the door and any window to your office and make the employee repeat it, so that other employees can hear.  In that case, you may be able to let your employee go.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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