Second Circuit Weighs in on Social Media, Profanity, and the NLRA

Monday, May 8, 2017

One of the fundamental protections of the National Labor Relations Act is that employers may not discipline employees for engaging in concerted activities relating to the terms and conditions of their employment.  Whether an employee has engaged in statutorily protected activity, however, is not always clear – especially when the activity involves profane or obscene conduct that would seem to cross the line in any other context.

For example, the Second Circuit Court of Appeals just considered whether an employee lost the protection of the NLRA when he took to social media in an expletive-laden rant on the eve of a union election.  The employee in the case, Perez, had worked for thirteen years as a server for a catering company, Pier Sixty, which was undergoing a tense union-organizing campaign.  Two days before the election, Perez received some directions from his supervisor that he felt were delivered in a “harsh tone” and that he viewed as further evidence of the company’s continuing disrespect for employees. So, during a break, Perez commented about the incident on his Facebook page, saying: “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!!!!!!!”  After learning of the post, the company terminated Perez.

Perez filed a charge with the NLRB claiming that he was terminated for engaging in protected concerted activities and the NLRB ultimately agreed.   On a petition for review by Pier Sixty, the Second Circuit acknowledged that an employee may act in such an abusive manner that he or she loses the protection of the NLRA.  However, under a “totality of circumstances” test as applied by the NLRB in recent social media cases, the court found that the evidence supported the NLRB’s decision that Perez’s obscenity-laced post was not “so egregious as to exceed the Act’s protection.” Recognizing that social media has become a “key medium” for communication among coworkers, the court found that even though the Facebook post may have been visible to the whole world, the comments were not made in the immediate presence of customers or at a company event and were therefore distinguishable from other cases involving opprobrious “public outbursts.”  And, although Perez’s post was dominated by “vulgar attacks,” the subject matter of the post nonetheless referenced workplace concerns and was made in the context of a tense organizing campaign.  Also tilting the balance in favor of affirming the NLRB’s decision was the fact that the evidence demonstrated that profanity was common in the workplace and that Perez’s termination was the first time the company had disciplined an employee for profanity.

For employers, the lesson from this case is that context matters.  Even the Second Circuit noted that this case sat “at the outer-bounds of protected, union-related comments.”  Determining where those outer-bounds end, however, requires employers to consider an employee’s activity in light of the circumstances in which it occurs.