Employee Respect Is an Unfair Labor Practice – Ask HR Bartender

Couple weeks ago, I answered a reader question about profanity in the workplace. You can check it out here. In the comments, someone mentioned that profanity could create a hostile work environment. Another person mentioned company guidelines asking for employees to respect one another was a unfair labor practice according to the National Labor Relations Board.

These comments totally caught my interest. So I decided to reach out to one of my labor attorney friends to get some additional insight. Jon Hyman is a partner at the Cleveland-based firm of Kohrman Jackson & Krantz. He focuses his practice on the representation of companies in employment disputes. Workforce Magazine recently named Jon to its editorial advisory board.

So first things first, has the NLRB ruled that “respect for coworkers” is an unfair labor practice?

[Jon] Sadly, it has. First, a little background is necessary. The National Labor Relations Act makes illegal employer rules and policies that employees could reasonably interpret as infringing on their rights to engage in protected concerted activity. To that end, the NLRB has been closely scrutinizing many boilerplate employment policies that regulate workplace speech.

For example, in Karl Knauz BMW, 358 NLRB No. 164 (2012), the NLRB concluded that the following policy violated employees’ section 7 rights: ‘Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.’ The Board held that the policy was illegal because ‘employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statements — whether to coworkers, supervisors, managers, or third parties who deal with the Respondent — that object to their working conditions and seek the support of others in improving them.’

I can see how the ruling makes sense. Employees need to be able to talk about working conditions. So companies cannot limit that conversation. But don’t companies need some sort of “employees need to treat each other with respect” statement? 

I’d love to say that employees always treat each other with respect and a policy isn’t necessary. But we both know that’s not the case. Doesn’t the NLRB ruling open the doors for workplace bullying? 

[Jon] I think that the NLRB is taking things too far. The NLRB should be reading these employment policies in context to find reasonable interpretations, not imagining a worst-case-scenario by which some employee somewhere could unreasonably interpret a policy as limiting the ability to comment on working conditions.

In a February 4, 2013, Advice Memorandum from the NLRB’s Office of General Counsel, the NLRB stated that ‘potentially violative phrases must be read in context and that it will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity.’ If that statement is true, however, how can the NLRB continue to justify its over-the-top rulings and policy statements on social media and other workplace communications policies?

At the end of the day, employers need to make a choice between a policy statement that limits liability for harassment and creates a workplace where abuse and bullying will not be tolerated, and a neutered policy that might pass muster with the NLRB but leave employers exposed elsewhere. I think the choice is obvious.

You and I started this conversation because of a question about profanity. Can companies ban the use of profanity in the workplace? Should they? 

[Jon] Yes, employers can still ban profanity in the workplace. Per the NLRB in its Karl Knauz BMW decision, the employer could have saved its policy by including language clarifying that ‘employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach.’ An employer can also include specific examples to illustrate that the policy does not extend to section 7 activities. Whether employers should ban profanity depends on the nature and culture of the workplace. A school, for example, should have very different standards and expectations as compared to a trucking depot.

I’m not talking about the times when we yell the F-word after slamming our hand in the filing cabinet. But could the regular use of profanity be considered part of a hostile work environment?

[Jon] Usually, salty workplace language, in and of itself, does not create an illegal hostile work environment. The regular use of profanity in the workplace can only be considered part of a hostile work environment if it is directed solely at one protected group to the exclusion of another, or if certain ‘big ticket’ profanities are lobbed at employees. An occasional ‘F-bomb’ likely will not create a hostile work environment. Someone using highly offensive slurs (you know the ones) toward a female employee or an African-American employee even once, however, is often enough to create an unlawful hostile work environment.

In your experience, has Corporate America changed where profanity is concerned? Is it more acceptable now?

[Jon] Corporate America tends to follow our cultural morays (albeit a little more slowly). Thus, to the extend that we, as a society, are more tolerant of off-color language, so is corporate America.

If the use of profanity is a part of a company’s culture, what can they do to make sure they hire people who won’t be offended by it?

[Jon] It is always difficult to gauge one’s ‘fit’ within a corporate culture during the hiring process. You can’t curse out a candidate during an interview to see if he or she can hack the language. Instead, if one’s ability to handle workplace profanity is a legitimate concern, ask questions to determine their tolerance level.

• What are the last five movies you saw?
• What books do you read?
• Do you prefer Bill Cosby or Richard Pryor?

Or, you can just cut to the chase, explain that salty language is part of the workplace, and ask if that poses a problem.

If an employee is upset about the language they hear, what should they do?

[Jon] Talk to management. A company cannot address and fix a problem that it does not know exists. Every company should have an open-door mentality to any complaint an employee might have. Management can then respond accordingly, depending on the nature of the complaint, the language used, and the context in which it was used.

Many thanks to Jon for sharing his expertise with us. If you want to read more of Jon’s insights, be sure to check out his blog, the Ohio Employer’s Law Blog. It’s been recognized by the American Bar Association Journal as one of the top 100 legal blogs for the last three years. And Jon is also the author of the book The Employer Bill of Rights: A Manager’s Guide to Workplace Law.

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