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Does Federal Law Protect an Employee’s Obscene Facebook Post?

facebook cyberbullyingIn the past few years, the National Labor Relations Board (“NLRB”) has focused its enforcement efforts on workplace policies that limit or prohibit employees from social media communications, such as Facebook and Twitter.  As a brief recap, the National Labor Relations Act (“NLRA”) applies to most all private sector employees, regardless of whether the employer is unionized.  Many employers are under the mistaken belief that only unionized workplaces, like the auto industry, or government employees, like police agencies, are subject to state and federal labor union laws.  In general, the NLRA prohibits an employer from interfering with employees who come together to discuss work related issues for, among other reasons, mutual aid or protection, and in today’s world, social media has become the primary avenue through which employees engage in such activity.

Several recent decisions from the NLRB have caused a firestorm of discussion in the labor world, including a 2014 case in which the employer was held to have violated the NLRA when it terminated two employees for posting a profane rant against the employer for not withholding the proper amount of payroll taxes from employee paychecks.  In that case, the employer did not contest its error in processing payroll taxes but maintained that the employees’ use of profanity, in a public forum, was cause for termination.  The NLRB disagreed, and ordered the employees’ reinstated with back pay.  In another case, the NLRB held that an employer’s policy that threatened discipline against employees for publicly sharing information related to the company or its customers was unreasonably

In another case, the NLRB held that an employer’s policy that threatened discipline against employees for publicly sharing information related to the company or its customers was unreasonably broad because it restricted employees’ right to communicate freely with their co-workers.  However, as discussed below, a more recent case from this year shows that the NLRB has taken the view that even the most public, profane attacks from an employee against an employer may still be protected by federal law.

In Pier Sixty, LLC, the NLRB upheld an administrative law judge’s decision that a catering company in New York City violated the NLRA when it terminated an employee for profanely insulting a supervisor in a Facebook post shortly before a union certification election.  Leading up to the social media post, employees of Pier Sixty sought union representation partly due to complaints that members of management had spoken to them in a disrespectful manner. Two days before the union certification election, an employee was working at a fundraising event when a manager spoke harshly to this employee and other employees.  The employee took a break and posted a derogatory comment on Facebook about the manager.

When Pier Sixty learned of the post, it conducted an investigation and terminated the employee after concluding that his comments violated the company’s harassment policy.  The employee filed an unfair labor charge and an administrative law judge determined that his Facebook comments were protected under the NLRA.  In affirming the administrative ruling, the NLRB set forth the following factors for assessing whether obscene social media posts are entitled to NLRA protection: (1) whether the employer has a record of anti-union hostility; (2) whether the employer provoked the employee’s conduct; (3) whether the conduct was impulsive or deliberate; (4) the location of the offending social media post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the employer considered the language offensive; (8) whether the employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline was typical of that imposed for similar violations. Because the record showed that the work environment at Pier Sixty was permeated with offensive language, which the company tolerated, the NLRB concluded that none of the factors weighed in favor of a finding that the employee’s comments were egregious enough to lose the NLRA’s protections.

Employee Typing Facebook PostsPier Sixty has appealed the NLRB’s decision to the Second Circuit Court of Appeals, which heard oral argument last week.  A decision is expected in the next few months.  Regardless of how the appeal turns out, this case is a stark reminder that employees can expect broad protections from discipline when complaining about working conditions on social media.  Unfortunately, Pier Sixty did not help itself, because of its extensive record of condoning vulgar language in the workplace, without imposing discipline.  If Pier Sixty had a better record of not permitting vulgar language, and disciplining those who engaged in that behavior, then many of the above-referenced factors may have went in its favor instead of the employee.

In sum, while it is essential that social media policies not inhibit concerted activity, employers have not lost the right to discipline employees who use social media to engage in abusive conduct that harms morale, particularly if the communication advocates outrageous activity or discloses company trade secrets.  The most important factor is adhering to carefully drafted policies that take into account employee protections as well as the employer’s interests.

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