D.C. Circuit: Employer Cannot Fire If Policies Inconsistently Applied


All Employers with DC Employees


August 9, 2022 



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In Constellium Rolled Products Ravenswood, LLC v. NLRB, the D.C. Circuit Court of Appeals stated that an employer could not fire an employee for vulgar comments because it inconsistently applied its own disciplinary policies. As a result of inconsistent enforcement, the employee’s termination was an unfair labor practice under the National Labor Relations Act (NLRA). The employer was ordered to compensate and re-hire the employee. 


There, employees were disgruntled about and protested changes to overtime assignments. One employee even wrote an inappropriate comment on the overtime sign-up sheet to criticize the new process. As a result, the employee was terminated. The National Labor Relations Board (NLRB) determined that the employee was engaging in protected concerted activity because it was part of a larger protest regarding the employees’ terms and conditions of employment. The employer appealed. 


The D.C. Circuit noted that the employer failed to discipline other employees who used the same vulgarity in other circumstances. More broadly, the employer tolerated “extensive profanity, vulgarity, and graffiti in the workplace” before this incident occurred. As a result of the employer’s inconsistency, employees didn’t even know what the company’s policy was regarding inappropriate language. The serious lesson from this case is that employers should make sure that they have clear policies and consistent enforcement to be able to rely upon them. 


Action Items 

  1. Review disciplinary policies for clarity. 
  2. Implement a disciplinary review process to ensure consistent treatment of employees. 
  3. Have appropriate personnel trained on policy enforcement. 
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase