CPA Practice Advisor

SEP 2018

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SEPTEMBER 2018 ■ 25 THE LABOR LAW ADVISOR Employee Profanity on Social Media Employee communications on social media sometimes include profanity or obscene remarks. Perhaps the rationale is that since it is done in cyberspace, it is not quite so personal. The question is whether such Facebook comments can be considered profanity in the workplace if they somehow relate to work, to a co-worker, or company management. The NLRB has addressed the issue in several cases and more often than not concluded that the conduct was protected under Section 7 of the NLRA because it related to working conditions or the comments were in support of another employee’s criticism of management. What Action Employers Should Consider The issue of profanity in the workplace can seem like a no-win proposition for employers, therefore to some, ignoring it may sometimes appear the easiest approach. However, as seen in the cases discussed, ignoring profanity can leave an organization vulnerable to complaints, lawsuits, and perhaps worst of all, permitting a workplace to become hostile to customers and/or employees. Obviously, a proactive approach is a better course both legally and operationally. It should include the following: Consider your industry, employees and culture. These are all critical considerations in dealing with such a subjective issue. There are no hard and fast rules, with the possible exception of banning the use of racial, ethnic, gender-based, disability–based and religious slurs. These have almost always led to complaints and more often than not, legal action. Otherwise, employers should consider how their organization operates on a day-to-day basis, what is considered normal and acceptable for their industry, how much contact employees have with customers, and similar practical factors. But that is not to say that tolerance of profanity should be the operating rule in any workplace. Because this is such a subjective area of employee relations, employers should develop policies to quickly escalate issues up the management chain whenever issues including workplace profanity arise. ■ Put your Policies in Writing Workplace profanity policies should be as specific as possible and clearly stated in the employee handbook. The policies should be addressed in employee orientation as well as in periodic training. They should also set forth the disciplinary measures for violation of the rules. Today, employees who are called to account for violating company profanity rules sometimes try to claim First Amendment protections of freedom of speech. However, the First Amendment does not apply in the workplaces of private employers. Profanity thus has no constitutional protection in the private workplace. ■ Train Managers and Supervisors Your managers and supervisors should receive training about how to respond to profanity in the workplace. An isolated outburst should be distinguished from a pattern or routine use of profanity. In addition to learning how to properly respond to employee concerns, they should clearly understand that use of profane language by them in front of employees is totally unacceptable. They must lead by example. Conclusion Like jokes and other idle banter, profane or obscene language can be a non-issue to some, while seriously offending others. Employers need to carefully consider what will be acceptable in their particular workplace. What may be tolerated in one, could lead to legal claims in another. ■

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