About Us  |  About Cheetah®  |  Contact Us

Firing employee for expletive-laced Facebook post violated NLRA

April 25th, 2017  |  Lisa Milam-Perez

An employer violated the National Labor Relations Act (NLRA) when it fired an employee because of comments he made on social media arguably disparaging his supervisor’s mother, the Second Circuit Court of Appeals ruled. The appeals court affirmed a National Labor Relations Board (NLRB) holding that the employee was engaged in protected conduct under the NLRA and his comments were not so “opprobrious” as to lose the Act’s protection (NLRB v. Pier Sixty, LLC, April 21, 2017, Cabranes, J.).

The NLRA prohibits employers from terminating an employee for union-related activity. But even otherwise-protected activity can lose the protection of the Act if it amounts to “opprobrious conduct,” leaving the employee subject to discharge. What constitutes “opprobrious conduct” in the context of an employee’s comments on social media? That was the question before the appeals court in the case of a catering company employee who referenced his supervisor’s mother in a profanity-filled Facebook post.

Break-time status update. The incident took place during a tension-filled lead-up to a union representation election. Two days before the scheduled vote, a supervisor used a “harsh tone” in giving directions to servers working a catering job. For one employee, it was just the latest example of management’s “continuing disrespect for employees.” So, during his break about 45 minutes later, he used his iPhone to post a message on Facebook. “Bob is such a NASTY MOTHER F@CKER,” he wrote, referring to the supervisor by name. “F@ck his mother and his entire f@cking family!!!!!” His brief post ended with “Vote YES for the UNION!!!!!!!”

The employee had ten coworkers or so among his Facebook “friends” who could view his post; he may not have known at the time that the post was publicly accessible. He took the post down after three days, but it had already come to management’s attention, and he was soon fired. He filed a charge with the NLRB that same day contending he was unlawfully terminated in retaliation for his protected, concerted activities.

Totality of the circumstances. Adopting an administrative law judge’s factual findings, a divided NLRB panel found the employee’s comments were “not so egregious as to exceed the Act’s protection.” The Board had eschewed its traditional four‐factor Atlantic Steel test used for evaluating “abusive” conduct within the brick-and-mortar workplace (a standard which had lost favor in the Second Circuit anyhow). Instead, the Board analyzed the Facebook post under the agency’s nine-factor “totality of the circumstances” test used in social media cases. The new test emerged from a recently issued guidance by the NLRB General Counsel’s office, one that paid heed to the “regularly‐observed distinction between activity outside the workplace and confrontations in the immediate presence of coworkers or customers.” (The appeals court was not convinced this new, more employee-friendly standard adequately balances an employer’s interests, but the employer didn’t challenge its use below, so the court would not address the matter.)

Checking off the “totality of the circumstances” factors, the Second Circuit held that the NLRB’s decision was supported by substantial evidence. The appeals court’s holding was informed by the larger context in which the offending comment was posted. In particular, the court noted:

  • While the Facebook post included a vulgar attack on the supervisor and his family, it also exhorted coworkers to “Vote YES for the UNION,” and the employee explicitly protested his supervisor’s mistreatment. It mattered that the underlying subject matter was workplace-related and addressed management’s poor treatment of workers and the impending union election.
  • The employer already had shown it was hostile to employees’ union activities. Before the employee ever posted the Facebook comment, the employer had threatened to rescind benefits or fire employees who voted in favor of the union. It also imposed a “no talk” rule on certain workers—including the employee discharged here, whose supervisor had prohibited him from talking about the union. As such, the social media “outburst” could be viewed not as an “idiosyncratic reaction to a manager’s request,” but as part of a larger dispute over the mistreatment of employees in the lead-up to the election.
  • The company consistently tolerated the widespread use of profanity by its workers—including the “f” word that so offended the employer here—as well as racial slurs, and it had never previously terminated an employee for the use of such expletives. In fact, the supervisor who was the target of the Facebook comment cursed at employees almost daily, screaming phrases like “Are you guys f@cking stupid?” In fact, the employee had worked for the employer for 13 years, with presumably as salty a tongue, yet only faced discharge for his election-eve profanity.
  • While the court conceded one could draw a distinction between the use of expletives generally and cursing at someone’s mother and family, the substance of the employee’s comments here could easily be taken not as a slur against the supervisor’s family, but rather, as an epithet directed toward the supervisor himself. (That’s how the law judge saw it).
  • Perhaps most notably, in terms of predictive value to employers: The appeals court observed that the comment was posted in “an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era,” acknowledging the growing (and permissible) role that social media can play in labor organizing. Also, the employee claimed he had mistakenly thought his Facebook page was private, and he took the post down once he discovered it was publicly accessible. That the post was briefly visible to the whole world, as the employer pointed out, was less meaningful to the Second Circuit than the mitigating fact that his outburst did not occur in the immediate physical presence of customers; nor did it disrupt the catering event.

Insufficiently “opprobrious”—or not the true reason? The admittedly “vulgar and inappropriate” conduct in this case sat “at the outer‐bounds of protected, union‐related comments,” the Second Circuit stressed. The appeals court hewed to the Board’s totality of the circumstances test, but seemed to ground its holding not only on its sense that the Facebook post was insufficiently “opprobrious” based on the requisite factors, but also on what seemed like skepticism that the post was the real reason for the employee’s discharge. (Perhaps the Board’s “totality” test itself is borne of such skepticism, as much as a desire to balance employee rights with the legitimate need for workplace civility.)

Crediting the NLRB’s factual findings gleaned after a six-day trial, the appeals court simply didn’t seem to think the Facebook profanity (again, hardly a novelty in this workplace, according to testimony) would have earned such a harsh rebuke had it not been made by a union supporter two days before a representation election. Which evokes the timeless labor law truism, one that long predates our social media era: If you wouldn’t otherwise fire an employee for misconduct absent his pro-union leanings or activism, then you can’t fire him for misconduct—at least not without running afoul of the NLRA.

Leave a Response

Powered by WP Hashcash