Profane Facebook Message Protected Under The NLRA

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Last week, the Second Circuit held that an employer violated the National Labor Relations Act (“NLRA”) when it fired an employee who had posted a profane and vulgar message on Facebook that insulted a manager and urged colleagues to vote in favor of unionization. The issue was to what extent does the NLRA protect an employee’s comments on social media and at what point is an employee’s conduct so “opprobrious” that he or she loses the protection of the NLRA.

Generally, the NLRA prohibits employers from terminating an employee based on that employee’s union related activity. However, if the employee engages in “opprobrious conduct,” he or she may lose the protection of the NLRA. In Pier Sixty, during a tense organizing campaign, an employee posted a profanity-laced message on Facebook that insulted both his manager, his manager’s mother and family, and encouraged other employees to vote for unionization. The Facebook message, which was visible to the employee’s Facebook friends, coworkers, was publicly available. Management learned of the Facebook message and fired the employee.

The question was whether the employee’s use of obscenities rendered the behavior “abusive.” The court found that the employee’s conduct “sits at the outer-bounds of protected, union-related comments,” but nonetheless found the activity protected. Although the Facebook message was vulgar, the “subject matter” of the message included workplace concerns and the upcoming union election. Additionally, the employer previously tolerated profanity among its workers. Thus, the employer failed to meet its burden of showing that the employee’s behavior was so egregious to lose the protection of the NLRA.

The takeaway of this case is employers that become aware of employee’s social media postings should be cautioned before disciplining. If the employee’s posting relates to union related activity or working conditions, it will likely be protected by the NLRA. Whether the employee loses the protection of the NLRA rests on a fact-sensitive analysis.

The case is National Labor Relations Board v. Pier Sixty, LLC, No. 15-1841 (Apr. 21, 2017), and the opinion is available here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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