Matthew Purushotham
Thu, 08/18/2022
On August 9, 2022 the D.C. Circuit upheld an NLRB decision finding that an employer unlawfully fired a worker who used a vulgar word in protest of a change in overtime assignment procedures.
In Constellium Rolled Products Ravenswood, LLC v. National Labor Relations Board, the Court upheld the NLRB’s rejection of the argument by the manufacturer employer that it was trying to avoid hostile work environment or workplace harassment litigation by disciplining the employee who protested new overtime assignment procedures by writing a vulgarity on a newly instituted and conspicuously placed overtime sign-up sheet. The Court agreed that the employer failed to demonstrate that its termination of the employee was part of an effort by the company to comply with anti-discrimination laws
Applying the NLRB’s Wright Line test, the Court upheld the Board’s conclusion that the employee’s protest of the overtime policy was protected activity, that the company knew about the activity, and that the employee demonstrated a causal link between his protest and his termination. As to the causal link, the Court upheld the Board’s finding, which relied on circumstantial evidence of disparate treatment, including the employer’s past toleration of “extensive profanity, vulgarity, and graffiti in the workplace,” including widespread use of the phrase that the employee was terminated for using. For the same reasons, the Court agreed that the company failed to show that it would have disciplined the employee absent his protected activity.
MSE previously reported on guidance issued by the NLRB related to political speech, noting that such speech must have a connection to the speakers’ working conditions to be protected.
If you believe your employer has targeted you for raising concerns about working conditions, contact MSE at info@mselaborlaw.com.
