Employment Law: The Digital Workplace
By Elijah Yip
Firing of Employee For Posting Profanity-Laced Facebook Comments Ruled Illegal
Social media seems to be a favorite forum for employees to complain about their workplace. Firing employees for posting work-related social media messages can land an employer in trouble. But is management absolutely forbidden from firing employees for making offensive comments on social media? Is there a line employees may not cross? The Second Circuit Court of Appeals took up this question recently in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).
The Facebook Firing
In early 2011, New York catering company Pier Sixty was in the middle of a tense organizing campaign that included management threatening employees who might participate in union activities. Two days before the unionization vote, Hernan Perez was working as a server at a Pier Sixty Venue. His supervisor, Robert McSweeney, gave him directions in a harsh tone. On his next work break, Perez posted this message on his Facebook page:
Bob is such a NASTY MOTHER F***** 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! ! ! ! ! ! !
Perez knew that his Facebook friends, including ten coworkers, could see the post, although he allegedly thought his Facebook page was private. Perez removed the post three days later, but not before it came to management’s attention. Perez was fired after an investigation.
The National Labor Relations Board (NLRB) decided that Pier Sixty unlawfully terminated Perez in retaliation for “protected, concerted activities.” Pier Sixty appealed to the Second Circuit and the NLRB filed an application for enforcement of its decision.
Evolving Standards of Whether Obscene Comments Lose Protection
Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA). But if an employee’s actions lose NLRA protection if they are “so opprobrious and egregious as to render him or her ‘unfit for further service.’” See Atlantic Steel Co., 245 NLRB 814 (1979). Pier Sixty argued that Perez engaged in “opprobrious” conduct by posting obscenities on Facebook.
The Second Circuit noted that the test for opprobrious conduct was unsettled. The NLRB traditionally used the Atlantic Steel four-factor test that considers the location and subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was provoked by an employer’s unfair labor practice. But in 2012, the NLRB began using a “totality of the circumstances” test in social media cases to address the unique context of social media and allay concerns that the Atlantic Steel test did not adequately consider employers’ interests.
Second Circuit Sidesteps Review of NLRB’s New Test
Without addressing the validity of the “totality of the circumstances” test, the Second Circuit found “substantial evidence” that Perez’s comments were not so egregious as to lose NLRA protection. Perez’s message, though vulgar, included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before the representation election.” Pier Sixty also did not previously discipline employees for widespread profanity in the workplace. Finally, Perez’s comments were not made in the immediate presence of customers and did not disrupt the catering event. Despite deciding that Perez’s conduct was not “opprobrious,” the court noted that the case sat “at the outer-bounds of protected, union-related comments” and reminded the NLRB to develop a test giving weight to employers’ legitimate disciplinary interests in preventing employee outbursts in the presence of customers.
Pier Sixty teaches that an employee may not be fired simply for making profanity-laced comments on social media if the comments are related to the workplace. The fact that the comments are accessible to members of the public, including customers, is not determinative. So at what point do an employees’ obscene comments lose protection? That remains an open question after Pier Sixty, but the court’s comments inspire hope that the NLRB will craft a more employer-friendly standard in the future.
Elijah Yip is a partner in Cades Schutte’s Litigation Department. He is currently the editor of Hawaii Employment Law Letter, where this article first appeared. In that role, he is also a member of Employers Counsel Network.