Obscene Facebook Posting Still Protected Speech Under Federal Labor Law
by Judd Lees
On April 21, 2017, the Court of Appeals for the Second Circuit upheld the National Labor Relations Board’s broad interpretation of “concerted protect activity” worthy of protection under federal labor law, when it determined that an employee’s vulgar Facebook post about a supervisor could not serve as a basis for the employee’s termination. In NLRB v. Pier Sixty, LLC, the Court affirmed the Board’s ruling that a “distasteful” Facebook post by an employee was nevertheless protected under the NLRA because the employer had tolerated profanity in the past and because substantial evidence indicated that the employer’s real motivation for terminating the employee was his union activity.
The Facebook posting at issue was triggered by a supervisor’s direction to staff, two days before a union certification vote, that they minimize the “chitchat” among themselves at catered events. An employee immediately posted the following obscenity-laden message on Facebook: “Bob is such a NASTY M****ER F****Er 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!!!!!” The employer investigated the posting which the Court conceded was “visible to the whole world,” and terminated the employee who posted it.
The NLRB examined the “totality of circumstances” and deemed the termination to be unlawful. In affirming the Board, the Court relied on the following factors. First, the employer tolerated obscenities in the workplace based on evidence that supervisors and employees had, in the past, used foul language with one another without any disciplinary action. Second, the obscene statements occurred in a Facebook posting rather than “in the immediate presence of customers” and therefore did not have an immediately disruptive effect at the workplace. Finally, the outburst occurred in the setting of a union election by a union supporter. Based on these factors, the federal court determined that the employer failed to meet its burden of establishing that the Facebook posting was so egregious that the employee lost any protection from retaliation under federal labor law.
Employers need to be aware that social media is the “new frontier” for NLRA protection by the Board. Even though such speech reaches far beyond company water coolers to reach customers and competitors of employers, the Board and the courts appear to bend over backwards to protect speech which could ostensibly reach employees. Thus, written social media policies must be narrowly drawn to avoid reaching protected speech and need to be applied in a nondiscriminatory fashion to avoid any appearance of singling out protected speech. One may anticipate changes ahead as the Trump administration appoints pro-management candidates to the two vacancies on the five-member Board but, until then, Pier Sixty will serve as controlling precedent.
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