Filthy on Facebook: Union Members Can Say What They Want

April 26, 2017

Although it isn’t a particularly good strategy for building strong workplace rapport, you probably won’t lose your job if you go on a profanity laced tirade using your favorite social media site (although that isn’t always the case), with one major proviso: the Second Circuit Court of Appeals recently opined that you shouldn’t get fired, as long as your F-bombs and insults are tied closely to union activities.

Last Friday, a three judge panel held that an employer could not fire an employee for his vulgar Facebook post promoting unionization while denigrating his manager’s mother, upholding an administrative decision made by the National Labor Relations Board.

The case dates back to 2011. Early that year, employees of Pier Sixty, a catering company in New York City, began to agitate for a union. In October, after months of campaigning full of rancor, the employees voted in favor of unionization. Just a few days before the vote, Hernan Perez, a server for the company, was castigated by his manager. Feeling disrespected and with tensions high before the pending vote, Perez took to Facebook to call out not only his supervisor, but his boss’ mother and entire family, too. However, at the end of the profane post, he encouraged his co-workers to vote to unionize.

Although Perez removed the post a few days later, he was fired shortly thereafter when the message came to the attention of Pier Sixty. He subsequently filed a complaint with the National Labor Relations Board, claiming retaliation based on protected union activities, violating 29 USC 158(a)(1) and (3).

The panel agreed with him and the administrative law judge, finding that while employee conduct can be so “opprobrious” as to lose the protection of the National Labor Relations Act, Perez’s social media activism did not reach that level. However, it did note that his activity “sits at the outer–bounds of protected, union–related comments…”

In deferring to the administrative judge’s determination in favor of Perez, the Court did question whether the nine-factor test based on the totality of the circumstances employed by the ALJ gave sufficient protection to employer interests, but sidestepped the issue since it was not objected to by Pier Sixty.

The court gave significant weight to three factors in particular. Initially, it highlighted the fact that the posting was made in the context of workplace discord, even if the content of the message included attacks on non-employees. Given that the company had taken many other steps to stifle employees from discussing unionization, the court was inclined to give Perez the benefit of the doubt.

Additionally, the court noted that Pier Sixty cultivated a workplace environment where profanity was permitted and even thrived. For example, it took no disciplinary action against employees for using a variety of four letter words, personal insults, or racial epithets. The panel found it alarming that Perez was fired just days after the election when such crude behavior was the norm, not an aberration.

Finally, the court indicated that posting the comments on Facebook militated against Perez’s termination, highlighting social media’s prominent role in mobilizing labor and other social movements. Rather than a statement made in the presence of customers at work, it was directed toward co-workers in an online forum.

The opinion and all those salty four letter words and personal insults can be read here.

Not a Westlaw subscriber? Sign-up for a free trial today.