Tuesday, April 25, 2017

2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration.
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!
Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Because the employee couched his MF’ing rant with a decidedly pro-union message, the appellate court held that section 7 protected him and his post.
First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. … 
Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace…. Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity. … 
Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible. 
Have no fear, employers, for despite the NLRB’s victory, the 2nd Circuit did find this to be a close case:
We note that this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests.
What can employers learn from this decidedly pro-employee decision?
  1. Timing is everything. Central to most of the court’s logic is the fact that (a) this employee was pro-union; (b) expressed his pro-union sentiment directly in his rant; and (c) such rant occurred a mere two days prior to the union election.

  2. It’s perfectly reasonable to take a stand against profanity in the workplace, but if you are going to do so, be consistent, or least consistent enough such that your first attempt at firing an employee for said profanity is not a pro-union employee two days prior to a union election.

  3. Social media is different, because of its openness and visibility. However, if you are going to rely on that openness to discipline or fire an employee who is using social media to engage in protected conduct because of abusive behavior such as profanity, you best come armed with actual evidence of customer or business disruption, or reputational harm. The mere public nature of the outburst alone may not be enough to justify your action.