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Calling Your Employer A #$&@%! On Facebook Is Protected Activity?

If you follow decisions from the National Labor Relations Board (NLRB), you are aware that an employee’s postings on Facebook may be considered protected activity under the National Labor Relations Act (NLRA). In a recent decision, a federal appellate court concluded that even the most vulgar rants by an employee are entitled to protection under certain circumstances.

In the case National Labor Relations Board v. Pier Sixty, LLC, the Second Circuit Court of Appeals upheld the NLRB’s finding that an employee was protected when he posted vulgar comments about his supervisor on Facebook while also encouraging coworkers to vote for the union in an upcoming election. If you are a regular attendee at our Masters Series, you may recall that we reported on this NLRB decision but were uncertain as to how this issue would be resolved by the federal court.

To put this case in the proper context, it is important to understand the factual background. Pier Sixty is a New York based catering company that was the target of a union organizing campaign. Working conditions at the Company were very tense during the union campaign. Approximately two days before the scheduled election, a supervisor was accused of using a “harsh tone” while giving directions to servers and showing a “continuing disrespect for employees.” During a break period approximately 45 minutes later, one of those same employees posted the following message on his Facebook page:

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

After Pier Sixty’s management became aware of the post, they conducted an investigation and terminated the employee. Applying the “totality of circumstances” test, the NLRB concluded that the employee’s post on Facebook was “protected concerted activity” and Pier Sixty violated the NLRA by terminating the employee. Pier Sixty was directed to reinstate the employee with full back pay and benefits plus interest.

As expected, Pier Sixty appealed the case to the Second Circuit arguing that the employee’s Facebook post was a vulgar attack on the supervisor as well as the supervisor’s mother and family which all fell outside the protections of the NLRA. Although the Second Circuit was somewhat critical of the NLRB’s “totality of the circumstances test,” the court nonetheless affirmed the NLRB’s decision.

The court noted that deference had to be afforded to the NLRB’s factual findings. In this case, there was evidence that Pier Sixty had consistently tolerated the use of profanity among its employees and supervisors. In the past, Pier Sixty had not disciplined other workers for their use of the word “f**k” and “mother f**ker” in the workplace. The court noted that the supervisor frequently cursed at employees while screaming such phrases as “What the f**k are you doing?”, “Mother f**ker” and “Are you guys f**king stupid?” The Second Circuit also found that Pier Sixty engaged in unfair labor practices leading up to the election and that this mistreatment led to the employee’s Facebook post. Although the court found that the employee’s post was at the “outer-bounds of protected, union-related comments,” the conduct was not so egregious to lose protection under the NLRA.

What are the takeaways for employers?

• This case reaffirms that employee comments on social media, even profane and vulgar comments, may constitute protected activity if they relate to terms and conditions of employment or an ongoing union campaign.

• While the decision may be very surprising to employers, it is important to note the factual context and the climate that existed in the workplace at the time of the posting. This case involved an ongoing union campaign and an employer who had engaged in inappropriate conduct, even threatening disciplinary action or discharge.

• Finally, the employer was guilty of inconsistent treatment. The employer strictly enforced rules of conduct during a union organizing campaign even though employees had not previously received discipline for using profanity. Furthermore, the supervisor frequently used vulgar and profane language when addressing employees in the workplace with no consequences. These facts supported an inference that the termination may have been motivated by the employee’s union activity.