Profanity-Laced Facebook Message Is Protected Activity
April 28, 2017
Because an employee’s profane and vulgar Facebook message occurred in the context of union organizing activity, the U.S. Court of Appeals for the Second Circuit found that it was protected by the National Labor Relations Act, although it sat at the “outer-bounds” of such protected conduct.
Background. The National Labor Relations Act prohibits employers from terminating employees based on union-related conduct. However, employees may lose the protection of the Act if their conduct is “opprobrious.”
In NLRB v. Pier Sixty, LLC, there was a “tense” organizing campaign. Two days before the election, while working an event, a server was upset by his supervisor’s attitude, which he viewed as part of management’s continuing disrespect for employees. During a break, he posted a message on his Facebook page, where a number of his co-workers were “friends” and which was publicly accessible:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
He was terminated, according to the employer, for his public use of profanity. The National Labor Relations Board, however, determined that the employer had violated the Act by terminating the employee in retaliation for his protected activity.
The Second Circuit’s Opinion. The Second Circuit agreed with the NLRB that the termination was illegal. According to the Court, the message constituted protected conduct under the Act in that it concerned workplace issues – management’s continuing disrespect for employees and the upcoming union election. The Court found that the conduct, despite its vulgar and profane nature, was not so opprobrious as to lose protection, based on the circumstances. These included the facts that the employer regularly tolerated similar language in the workplace, and that while the Facebook post may have been publicly available, it did not occur in the immediate presence of customers or disrupt the event at which the employee had been working – and thus was not the equivalent of a “public outburst” in the presence of customers that has been found to lose protection. The Second Circuit cautioned, however, that these statements bordered on unprotected conduct.
What This Means for Employers. What seems like clearly unacceptable conduct – conduct for which an employer should be able to discipline an employee – must be carefully reviewed before disciplinary action is taken. If the conduct implicates the terms and conditions of employment, it will be protected unless it is so egregious that it loses such protection – but this is a difficult standard to meet, as is evident from this case. And it appears that the NLRB and the Second Circuit view online activity, even if publicly accessible, as being quite different from in-person activity in front of customers.