Court Sides with Employee

The Second Circuit (which covers Connecticut) recently issued a decision that may surprise you. In NLRB v. Pier Sixty, LLC, the court held that an employee’s Facebook post containing expletives and insults aimed at his manager and his manager’s mother was protected activity under the National Labor Relations Act (NLRA). The NLRA is a federal law that grants private sector employees the right to form unions and to engage in protected, concerted activities to improve working conditions (whether or not they are in a union).

During a tense union organizing campaign at a catering company in New York, an employee fed up with his manager’s disrespectful treatment of employees used his iPhone during a work break and posted the following on Facebook:

“Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

The employee was Facebook friends with about ten other employees, and, unbeknownst to the employee at the time, the post was also available to the public. The employee deleted the post three days later, but the employer had already become aware of it. After an investigation, the employer fired the employee, just two days before the union election.

After an administrative law judge sided with the employee, the National Labor Relations Board (NLRB), which is the body that enforces the NLRA, upheld that decision. The employer appealed to the Second Circuit. The Second Circuit agreed with the NLRB holding that the employee’s Facebook post, while vulgar, was protected activity under the NLRA because (1) it urged other employees to vote for the union days before the election and expressed concerns about the manager’s lack of respect for employees (protected activity under the NLRA); (2) the employer had a long history of tolerating the use of profane language by its employees at work; indeed, the employer had not disciplined very many employees for use of inappropriate language and had never fired anyone for it; and (3) the employee’s conduct was not in front of customers and was not disruptive to the workplace.

Generally speaking, the NLRB protects employees who complain together about their jobs or employers on social media, but often does not protect employees who hurl profanity-laden insults at management. After all, employers have a legitimate interest in regulating employees’ workplace conduct. To be sure, the Second Circuit warned that this employee’s conduct, while not so “opprobrious” as to lose the protection of the NLRA, was on the “outer-bounds of protected, union-related comments.”

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