Rich Meneghello
Fisher Phillips
In an April ruling that could leave employers fuming and possibly cursing, a federal appellate court ruled that an employee who used a public Facebook page to curse at not only his boss, but also his boss’ mother and entire family, should not have been fired. Instead, the U.S. Court of Appeals for the Second Circuit decided that the expletive-filled rant was protected by federal law because it was considered protected concerted activity. It’s a stark reminder that employers need to exercise caution when disciplining people who complain online about workplace conditions, even if they use four-letter words to do so.
The Facebook post
Pier Sixty operates a catering company in New York City. In late 2011, the company faced a union organizing drive that was, by all accounts, quite tense. The company managers even threatened employees that they could be penalized or discharged for engaging in union activities, which management later acknowledged was in violation of the National Labor Relations Act (NLRA). Some employees also felt that
management engaged in a pattern of disrespectful behavior toward them.
One such employee, Hernan Perez, was upset at his supervisor, Bob McSweeney, for talking to him in a “harsh tone.” Perez alleged that, just two days before the election, McSweeney directed him to “stop chitchatting” and “move, move” during a catering event in a way that seemed demeaning. Forty-five minutes later, during an authorized break from work, Perez used his smartphone to post the following message about McSweeney to his Facebook page: “Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!! F___ his mother and his entire f___ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!”
The edits to make this language somewhat family friendly are for publication; Perez’s post was not censored in any way. The company terminated Perez’s employment when it learned of the offensive post, and Perez filed an unfair labor practice charge with the National Labor Relations Board. In 2013, the NLRB ruled in Perez’s favor and found he had been discharged in retaliation for engaging in protected activity. The employer appealed the decision to the appellate court, which issued its decision on April 21.
How the court ruled
The court started with the premise that the NLRA prohibits employers from discharging an employee for concerted or union-related activity. Specifically, Section 7 guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. This right applies to unionized and nonunionized workers alike, whether in the midst of an organizing drive or on any typical workday.
The court then acknowledged that an employee may act in such an abusive manner that he loses the protection of the NLRA, even when engaging in ostensibly protected activity. The question for the court, then, was whether Perez’s Facebook post was “so opprobrious as to lose the protection that the NLRA affords union-related speech.”
This is not the first time a court has been called upon to determine whether a social media post was too profane to be protected. In fact, the NLRB in 2012 issued guidance to assist courts and agency members with how to distinguish such postings. The guidance document recommends a nine-factor test to examine the “totality of the circumstances” in such cases: 1, any evidence of anti-union hostility; 2, whether the conduct was provoked; 3, whether the conduct was impulsive or deliberate; 4, the location of the conduct; 5, the subject matter of the conduct; 6, the nature of the content; 7, whether the employer considered similar content to be offensive; 8, whether the employer maintained a specific rule prohibiting the content at issue; and 9, whether the discipline imposed was typical for similar violations or proportionate to the offense.
The court pointed to three main factors that led it to conclude that the termination violated the NLRA. The court first said that although the Facebook post was dominated by vulgar attacks on the manager and his family, it included workplace concerns. This was not simply a situation where an employee was upset at his supervisor and cursed at him. Instead, the court concluded the post “was part of a tense debate over managerial mistreatment in the period before the election.”
The court then found that the employer permitted managers and employees alike to use profanity in the workplace on a regular basis with very few repercussions. In fact, despite evidence that vulgar language was used on a daily basis, even language similar to that found in the offending Facebook post, Pier Sixty could only show that five warnings for offensive language were issued over a six-year period.
Finally, the court said that the “location” of the comment was a factor that led it to rule in favor of Perez. It was not in the immediate presence of customers and did not disrupt the catering event; also, there was no evidence that the statement reached any customers or potential customers.
A valuable lesson
There is some good news in the court’s opinion. It notes that the employee’s conduct “sits at the outer-bounds of protected, union-related comments.” In other words, if possible, this case draws the definitive line that employees cannot cross if they wish to maintain the protections of the NLRA.
The main lesson to be learned here is that employers need to tread carefully when disciplining workers for social media posts, especially if they contain content that could be characterized as complaints about the workplace. Involve labor counsel each and every time discipline is being considered, and given the NLRB’s heightened sensitivity toward workplace rules, ask labor counsel to review company policies to ensure they comply with the latest NLRB directives.
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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter – @pdxLaborLawyer.
