N.J. Police sergeant’s ‘obscene’ comments in e-mail warrant suspension

November 15, 2016

Employment Law BookIn many states, public employment statutes protect the right of workers to protest working conditions and other terms and conditions of employment. For instance, an employee’s rude or even profane comments or gestures may be protected by law if they are made in the “heat of the moment.”

But an employee’s comments may lose statutory protection – and merit disciplinary measures – under certain egregious circumstances.

A recent decision by the New Jersey Public Employment Relations Commission illustrates this concept: Township of Morris and Morris Township Superior Officers Association, 2016 WL 6440977, 43 NJPER 43 (N.J. PERC 2016).

The case arose from the repercussions of an e-mail sent by a police sergeant for Morris Township, New Jersey, to the entire union membership using the union e-mail chain. The e-mail included a picture in which the sergeant appears to be urinating (he was actually standing in front of a water fountain).

Using some obscenities, the sergeant made some statements apparently referring to a limit on salary increases in a successor negotiations agreement.

A hard copy of the e-mail was sent anonymously through regular mail to police officials, who conducted an internal investigation. The employer eventually suspended the sergeant for five days without pay. In its ensuing unfair practice charge, the union alleged that the employer improperly suspended the sergeant in retaliation for his exercise of protected rights.

A majority of the New Jersey Public Employment Relations Commission rejected the charge. The PERC majority acknowledged the fact that, in the past, it has allowed some leeway for adversarial and impulsive behavior during negotiations and grievance meetings.

However, such behavior may lose its statutory protection if it indefensibly threatens workplace discipline, order, and respect.

The PERC majority said that “PERC has never held that an employee is completely immune from adverse action for conduct that goes beyond the bounds of propriety.”

(Westlaw users: Click here for the latest from the New Jersey Public Employee Reporter.)

Here, the PERC majority explained that it might have found the views expressed in the e-mail to be protected if the e-mail hadn’t included graphic vulgarity, profanity, and contempt for the city administration.

It concluded that the employer maintained a lawful motive to discipline the sergeant because the email was inconsistent with department rules.