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Cannot fire employee for profanity laced Facebook post

July 31, 2017

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

It’s always a question to employers as to what extent off duty actions can be held against an employee.  Certain situations may be easier than others to assess, such as an employee arrested for a crime.  But what about an employee’s Facebook rantings? 

A 2016 CareerBuilder study found that 60% of employers use social networking sites to research job candidates, up from 52% in 2015 and 11% in 2006.  More importantly, employers are looking at current employees.  41% of employers say they use social networking sites to research current employees, nearly a third (32%) use search engines to check up on current employees, and more than one in four (26%) have found content online that has caused them to reprimand or fire an employee.

A recent case shows the fine line between protected employee speech and disciplinable postings.  In National Labor Relations Board v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017), the Federal 2nd Circuit Court of Appeals reviewed whether the rantings of an employee who used a profanity laced Facebook posting to express his anger over a supervisor was protected speech under the National Labor Relations Act (NLRA).  This was a situation of a nonunion employee expressing his opinion, but coupled with the complexity of a union organizing campaign. 

Two days before a union organizing election, Hernan Perez was working as a server at a Pier Sixty venue.  His supervisor spoke to Perez and his colleagues working an event in a tone that Perez thought was disrespectful.  He took it to be a continuing of the disrespect he felt management had expressed to himself and his work colleagues.  Perez was so upset that 45 minutes later, during an authorized break, he used his iPhone to post the following message on his Facebook page:

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!!!!!!!

Bob was the supervisor who Perez thought spoke disrespectfully to him.  Pier Sixty management found out about the post, did an investigation, and fired Perez.

 On the day he was fired, Perez filed a charge with the National Labor Relations Board (NLRB) alleging that he had been terminated in retaliation for “protected concerted activities.”  The NLRB ruled that Pier Sixty fired Perez over a protected activity.  The ruling was appealed by Pier Sixty.  The NLRB filed a petition for enforcement of the ruling.

The question before the 2nd Circuit was what “is the extent to which the National Labor Relations Act protects an employee’s comments on social media and the point at which an employee’s conduct is so “opprobrious” as to lose the NLRA’s protection.”

The Court had to review whether the post Perez wrote was so abusive that he loses the protection of the NLRA.  Under the NLRA the right to engage in union‐related activity is protected by Sections 8(a)(1) and 8(a)(3) of the NLRA, which prohibit an employer from discharging employees for participating in protected, union related activity. The post was clearly union related.  Therefore, the court had to determine whether Perez’s use of profanity rose to the level of abusive.

The NLRB used a nine factor totality of the circumstances test for this case. The record showed that Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees, including Perez, who were prevented by their supervisor from discussing the Union.  The outburst was not done before customers, but in a public post that was taken down three days later.  Moreover, it was found that Pier Sixty consistently tolerated profanity among its workers and had not fired an employee for using profanity at work.  Finally, Perez had worked at Pier Sixty for 13 years and was not disciplined before.

The termination was found unlawful; however, the 2nd Circuit noted that “Perez’s conduct sits at the outer‐bounds of protected, union‐related comments. Perez was to be reinstated to his previous position with full back pay and benefits and interest calculated daily. 

Whether this language situation will remain within the norm or be an aberration will be dependent on the new make-up of the NLRB, once all new Republican appointees are confirmed.  It is recommended to all employers who haven’t had their handbook policies reviewed for a while to have at minimum a review of all non-harassment, social media, confidentiality, non-disparagement, workplace conduct, and similar policies.

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