The National Labor Relations Board has handed down another social media law opinion. Can an employee be protected from firing after a profane Facebook rant about a supervisor?
I’ve covered the NLRB’s rulings on social media law in the past. Here’s one recent post on the subject.
Let’s review: the National Labor Relations Act (NLRA) does not allow an employer to take actions or have a policy that may actually or potentially “chill” an employee’s right to engage in protected concerted activity – basically, concerted activity means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA).
Just to avoid any confusion:
- NLRA stands for National Labor Relations Act
- NLRB stands for National Labor Relations Board
- There is no NLRC. Well, there is, but for the purposes of this post, let’s focus on A and B.
The case in question is Pier Sixty, LLC. Pier Sixty is a Manhattan-based catering company. Its employees were considering forming a union. A few days before the union vote, after a dispute at a catering event, one of the employees, Hernan Perez, took a break, went into the bathroom, and posted the following note about his supervisor, Bob, on his personal Facebook page:
Bob is such a NASTY MOTHER [censored] don’t know how to talk to people!!!!!! [Censored] his mother and his entire [censored] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
You can click on the link above to read the uncensored version, but I think you get the gist. The next day, Perez took down the post.
A week or so later, Perez was fired on the grounds that his Facebook comments had violated company policy. The company refused to provide him with a copy of the policy in question.
The NLRB’s decision provides a bit of additional context. As the NLRB Opinion states, “vulgar language is rife in [Pier Sixty’s] workplace, among managers and employees alike.” Let’s just say they weren’t running a preschool. Feel free to read the Opinion yourself for all the obscenities and racial epithets and such.
Before the case got to the NLRB, it was heard by an Administrative Law Judge. The judge considered nine factors in determining that Perez’ Facebook post was, in fact, activity that was protected under Section 7 of the NLRA. The factors are (deep breath):
- Whether the record contained any evidence of the Respondent’s antiunion hostility.
- Whether the Respondent provoked Perez’ conduct.
- Whether Perez’ conduct was impulsive or deliberate.
- The location of Perez’ Facebook post.
- The subject matter of the post.
- The nature of the post.
- Whether the Respondent considered language similar to that used by Perez to be offensive.
- Whether the employer maintained a specific rule prohibiting the language at issue.
- Whether the discipline imposed upon Perez was typical of that imposed for similar violations or disproportionate to his offense.
Agreeing with the judge, the NLRB stated:
We find that an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.
Take a look at Factors 7 and 8. They can be understood to mean that if an employer allows vulgar and offensive language in the workplace, the employer can’t turn around and punish an employee for using the same language in the context of union organizing or work conditions (again, we’ll call that “concerted activity.”)
The NLRB found Pier Sixty to be in violation of the NLRA and ordered them to reinstate Perez and make him whole for any lost wages.
Note that one judge on the NLRB’s three-judge panel dissented, stating:
I find that Perez’ vulgar and obscene Facebook comments lost the Act’s protection.
In condoning Perez’ offensive online rant, which was fraught with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity.
In the end, the NLRB continued its years-long trend of finding all kinds of activity that employers don’t necessarily like or condone to be protected under the NLRA.
If You’re An Employer
Be very careful about terminating or punishing an employee who is commenting – online or otherwise – about work conditions or unionizing, even if their speech or behavior would otherwise merit disciplinary action. Even a vulgarity-laden online rant may be protected speech under the NLRA under certain contexts.
If You’re An Employee
In the words of the Clash, “Know Your Rights.”