On Friday, April 21, 2017 a Second Circuit Court of Appeals panel affirmed a National Labor Relations Board ruling that a catering company server was wrongfully terminated for making an obscene and vicious Facebook post that verbally attacked a supervisor and his family, because it included a pro-union message (and was therefore protected activity under the National Labor Relations Act).
The employee was apparently frustrated with the supervisor’s treatment of himself and his co-servers and published the post from his smartphone while on break at a catering event. The post read:
Bob is such a NASTY M***** F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The court observed that the Facebook post, which did not even spare the supervisor’s mother from attack, straddled the line between protected and unprotected conduct. Nonetheless, the court concluded that three factors tipped the scales in the employee’s favor:
- The post included workplace concerns, and the employer had taken a hostile stance toward employees’ unionization activities.
- Profane language, including the expletives in the post, had been tolerated from supervisors and subordinates alike, and no previous employee had been discharged for using profane language alone.
- The employee published the post away from customers and without disrupting the catering event.
The court’s decision is more pushback against perceived “tone policing” by employers, or the idea that an employee’s expressed grievances may be ignored (or even punished) if they are communicated in a rude or hostile manner. However, the panel did remark that the Facebook post “sits at the outer-bounds of protected, union-related comments.” While not legally binding on legal authorities faced with future cases, the remark does put the Board on notice that protected activity has its limits.
We at HR Legalist recommend that employers take the time to review their social media policies. To ensure compliance with NLRB standards, employers should be mindful that the National Labor Relations Act gives covered employees certain rights to work together and “improve their pay and working conditions,” regardless of whether or not a union is involved. The NLRB will sometimes advocate on behalf of “non-union,” private sector employees, even when those employees have no interest in unionization. If disciplining employees for social media posts is part of the protocol, employers must make sure to enforce these policies consistently and fairly. When in doubt, we at HR Legalist urge readers to reach out to preferred legal counsel.
Michael S. Pepperman is a partner in Obermayer’s Labor Relations and Employment Law Department practicing in the area of employment and labor litigation. He can be reached at 215.665.3032 or firstname.lastname@example.org
Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation. He may be reached at 215-665-3048 or email@example.com.