December 20th, 2011: National Labor Relations Act protection can be lost by an employee's outburst if the court determines the subject matter and nature of the outburst were not provoked by the employer's practices.

On December 10th, 2011, in Plaza Auto Center Inc. v. NLRB (US Court of Appeals – Ninth Circuit, No. 10-72728), the court held that obscene language during an outburst at work must be considered when determining whether the employee can retain the National Labor Relations Act protection.

In Plaza, an Auto Salesman continuously questioned various employment practices. In response to his inquiries, management consistently responded that the plaintiff was free to quit employment if he did not agree with the practices. In one meeting, management called the plaintiff into their office to have an exchange about the plaintiff's lack of trust in the company. Again they stated that if he did not trust the company he could quit. This resulted in the plaintiff's outburst, which was characterized by obscene language.

The court found that NLRA protection applies only where all factors have been taken into consideration. This includes assessing whether the policies of the company were the result of the outburst and the nature of the outburst itself. Inasmuch, the court found that the language used by the plaintiff was material to determining whether there had been a loss of NLRA protection.

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