Federal Appeals Court Finds Vulgar Workplace Graffiti is Protected Activity (Sometimes)
September 8, 2022
No, your eyes aren’t playing tricks on you. You read that correctly. The U.S. Court of Appeals for the D.C. Circuit recently affirmed a ruling by the NLRB which found an employer violated the National Labor Relations Act when it fired an employee who wrote a vulgar phrase on an overtime sign-up sheet. But, the decision isn’t all bad news for employers. Examination of the facts underlying the ruling suggests that crass graffiti isn’t always protected activity.
In Constellium Rolled Products Ravenswood v. NLRB, the employer posted overtime sign-up sheets so that employees could volunteer for overtime shifts. One employee apparently took exception to the practice and wrote the words “whore board” on the sign-up sheets. After investigating the incident, the Company determined that the graffiti violated its anti-discrimination policy (among other policy violations). The Company fired the perpetrator.