In a recent ruling (NLRB v. Pier Sixty, LLC), the U.S. Court of Appeals reminds employer that they must exercise extreme caution when disciplining an employee for complaining about workplace conditions on social media, because these posts could be considered protected concerted activity – even if the posts contain explicit language.
In 2011, employees at Pier Sixty, a New York–based catering company, began a union organizing drive. Prior to the union election, Hernan Perez, a Pier Sixty server, posted a derogatory message about his supervisor, Robert McSweeney, on his Facebook page. This message was posted after McSweeney spoke harshly to a group of Pier Sixty employees. Perez, interpreted McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” which prompted the following Facebook post:
Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
When the company learned of Perez’s post (two days prior to the Union election), Perez was terminated.
Following his termination, Perez filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRB found that Perez’s termination was in retaliation for engaging in protected activity and the company appealed the decision to the 2nd Circuit Court of Appeals.
The NLRA prohibits employers from discharging an employee for concerted or union-related activity. Protected concerted activity includes employees (union or non-union) complaining about (and even commenting on) workplace conditions.
Working from this premise, the Court found that despite the fact that Perez used hostile language and openly attacked his supervisor on social media, Perez was complaining about working conditions and therefore was engaging in protected concerted activity when he posted that comment on social media.
To reach this holding, the Court used the NLRB’s nine-factor test to examine the “totality of the circumstances” and determine whether Perez’s termination violated the NLRA. The nine factors are:
- any evidence of anti-union hostility;
- whether the conduct was provoked;
- whether the conduct was impulsive or deliberate;
- the location of the conduct;
- the subject matter of the conduct;
- the nature of the content;
- whether the employer considered similar content to be offensive;
- whether the employer maintained a specific rule prohibiting the content at issue; and
- whether the discipline imposed was typical for similar violations or proportionate to the offense.
Specifically, the Court found that three of the above-listed factors led to its conclusion that Perez’s termination was unlawful:
Subject matter of the conduct (#5)
Here the Court found that the Facebook post “included workplace concerns: management’s allegedly disrespectful treatment of employees, and the upcoming union election.” While the post did contain profanity and attacks against his supervisor, the Court looked at the events that led up to the post and concluded that Perez’s post “was part of a tense debate over managerial mistreatment in the period before the election.” As a result, the conduct was likely protected concerted activity.
Whether the employer considered similar content to be offensive (#7)
Here the Court examined the employer’s past practice when responding to similar conduct. The Court found that the employer tolerated its employees (and managers) using profanity in the workplace. Specifically, the company had issued only five warnings for inappropriate language in the six years prior to Perez’s termination, and no other employee except for Perez had been terminated solely for using obscenities in the workplace. Combining those factors with the timing of Perez’s termination, this led the Court to believe that Perez’s termination was retaliatory.
The location of the conduct (#4)
Here the Court examined the forum Perez used to voice his complaint. The Court found that, while Perez complained online (where anyone in the world can potentially view), the comment was not made in the immediate presence of customers and did not disrupt the company’s operations. In addition, the company could not show that any customers were actually aware that these comments had been made. Based on the foregoing, despite the fact that Perez made a “vulgar and inappropriate” statement, the Court found that it was not the same thing as Perez making a public outburst in the presence of customers; therefore, the comment was protected concerted activity.
Take Home for Employers:
This case teaches employers a very important lesson – act with caution when disciplining employees for their social media posts, especially if those posts contain content that could be viewed as complaints about the workplace. While this case, as the Court admitted, “sits at the outer-bounds of protected, union-related comments,” it teaches all employers that under certain circumstances, even an offensive post can be protected.
Before disciplining an employee for his/her social media posts, it is recommended that you carefully consider the above-listed factors to determine whether the employee’s post could be viewed as protected concerted activity. Most importantly, consult with an HR Professional or qualified legal counsel before taking any action against the employee.