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► Court Upholds Worker's Right To Post Obscene Facebook Rant

The Second Circuit Court of Appeals recently upheld a National Labor Relations Board (NLRB or Board) ruling that an employee's profanity-laced Facebook post attacking his supervisor and the supervisor's family was protected activity.


Pier Sixty, LLC, operates a catering company in New York City. In early 2011, its employees sought to unionize. After a tense organizing campaign, the employees voted in favor of the union on October 27, 2011.

Before and at the time of the election, Hernan Perez was employed as a server by Pier Sixty. Two days before the election, his supervisor, Robert McSweeney, instructed him and two other servers in a "harsh tone" to "turn [their] head[s] that way [toward the guests] and stop chitchatting," and "spread out, move, move." Perez believed McSweeney's instructions were disrespectful, and during an authorized break from work, he used his iPhone to post about the encounter on his Facebook page. His post read:

Bob is such a NASTY MOTHER F__KER! don't know how to talk to people!!!! F__k his mother and his entire f__king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!

Perez understood that the post would be visible to his Facebook "friends," including 10 coworkers, but he claimed he didn't realize, until days after he posted it, that it would also be publicly available. Three days later, on October 28 (a day after the election), he removed the post. But it was too late—the post had already come to Pier Sixty's attention. The company conducted an investigation and fired him on November 9.

Perez filed a charge with the NLRB claiming that Pier Sixty fired him in retaliation for engaging in "protected concerted activities" in violation of the National Labor Relations Act (NLRA). An administrative law judge (ALJ) agreed with him and issued a decision indicating that Pier Sixty had violated Sections 8(a)(1) and 8(a)(3) of the NLRA when it discharged Perez for his Facebook post. The ALJ's decision was upheld by a three-member panel of the NLRB.

The NLRB filed an application for enforcement with the 2nd Circuit, which is the federal court of appeals covering several jurisdictions, including Connecticut and New York. Pier Sixty challenged the NLRB's ruling.

2nd Circuit's decision

The National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity such as unionizing and discussing wages, benefits, and other terms and conditions of employment. The Act applies to both unionized and nonunionized employers, and it prohibits employers from discharging them for engaging in such activities. However, there are limits to employees' rights. If an employee engaged in a protected activity acts in an "abusive" manner, his conduct may not be protected. At issue in this case was whether Perez's use of obscenities in his Facebook post constituted "abusive" behavior and therefore wasn't protected by the NLRA.

In recent cases analyzing whether an employee's social media activity constitutes protected activity, the NLRB has used a nine-factor "totality-of-the- circumstances" test that looks at the following factors:

1.         Any evidence of antiunion hostility;

2.         Whether the conduct was provoked;

3.         Whether the conduct was impulsive or deliberate;

4.         The location of the conduct;

5.         The subject matter of the conduct;

6.         The nature of the conduct;

7.         Whether the employer considered similar conduct offensive in the past;

8.         Whether the employer maintained a specific rule prohibiting the conduct at issue; and

9.         Whether the discipline imposed was typical for similar violations or was proportionate to the offense.

The NLRB used the totality-of-the-circumstances test to analyze Perez's conduct.

In a previous case, the 2nd Circuit concluded that the totality-of-the-circumstances test gave insufficient weight to an employer's interest in regulating employee conduct. The 2nd Circuit asked the NLRB to develop a test to determine the scope of the NLRA's "protection for an employee who, while discussing employment issues, utters obscenities in the presence of customers" and account for the countervailing interests of the employer in regulating such conduct. In its decision in Perez's case, the 2nd Circuit again questioned whether the test "adequately balances an employer's interests," but because Pier Sixty didn't object to the NLRB's use of the test, it couldn't consider the validity of the test.

Because Pier Sixty hadn't objected to the NLRB's use of the totality-of-the-circumstances test, it had to prove that the Board's decision wasn't supported by "substantial evidence" in order to convince the 2nd Circuit to overturn it. Although the 2nd Circuit indicated that Perez's conduct was at the outer bounds of protected union-related activity, in its view, Pier Sixty failed to satisfy the substantial evidence burden. Several pieces of evidence guided its decision.

Despite the fact that Perez's post included a profanity-laced attack on McSweeney and his family, he also discussed workplace concerns, including management's perceived disrespect for employees and his support for the election petition. The 2nd Circuit noted that Pier Sixty had threatened to either fire or take other adverse action against employees who voted in favor of the union. McSweeney had also previously prohibited employees, including Perez, from discussing the union.

Moreover, there was evidence that Pier Sixty had frequently tolerated the use of profanity by its employees. Despite evidence of employees' sometimes daily use of the same profanities Perez had used in his message—including profanity by McSweeney—Pier Sixty had disciplined employees for cursing only five times and had never previously terminated an employee solely on the basis of his use of profanity. In the 2nd Circuit's view, it wasn't unreasonable for the NLRB to decline to distinguish between the general use of profanity and specific profanities directed at another employee's family.

The 2nd Circuit also found it significant that Perez's use of profanity occurred in the context of an online forum that was the "key medium of communication among coworkers and a tool for organization in the modern era." Because the cursing appeared on Facebook, it didn't occur in the immediate presence of customers and didn't otherwise disrupt Pier Sixty's business. Additionally, the post wasn't a "public outburst," which might have jeopardized its protected status, because he was unaware that the post would be publicly available and took it down when he realized it was.

Bottom line

This case serves as a reminder of the broad scope of social media conduct that may constitute protected activity under the NLRA. Although the 2nd Circuit noted that the employee's conduct was at the "outer bounds" of what it would consider protected activity, it nevertheless set a high bar. Review your policies addressing employees' social media activity, and be cautious when you discipline employees who use social media as a platform to discuss workplace concerns.

Moreover, even though the 2nd Circuit questioned whether the legal framework used by the NLRB to justify Perez's conduct adequately balanced the employer's interest in regulating such misconduct, it is the framework you must keep in mind until the NLRB chooses to address the court's concerns.

By James M. Leva. Mr. Leva is an attorney with Day Pitney LLP in Hartford, Connecticut, and writes for the New Jersey Employment Law Letter.



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