An employee called his boss a “NASTY MOTHER F***ER” on Facebook and further wrote about the boss: “F*** his mother and his entire f***ing family.” His boss fired him. Was this a wrongful termination? The answer may be surprising. Today’s employment law blog from Long Island employment lawyers Famighetti & Weinick PLLC explains.
The following facts are taken from NLRB v. Pier Sixty, LLC, a case decided by the Second Circuit Court of Appeals on April 21, 2017.
Hernan Perez was a server for Pier Sixty, a catering company. In 2011, Pier Sixty’s employees sought union representation. The organizing campaign was “tense,” with management threatening employees that they could be fired for union activities. Nonetheless, the employees unionized via a vote on October 27, 2011.
Just before the election, a Pier Sixty supervisor directed Perez and two other workers to stop chatting and to move. Perez was upset by the supervisor’s attitude. Shortly after this incident, Perez took an unauthorized break from working and posted a message on Facebook about “Bob,” the supervisor:
Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The post was visible to Perez’s Facebook friends and ten co-workers. It was also visible publicly. Pier Sixty management learned about the post and then Perez removed the post on October 28, 2011. On November 9, 2011, Pier Sixty fired Perez, who filed a charged with the NLRB against Pier Sixty alleging that his post constituted protected concerted activity and that his termination was retaliation for that protected conduct.
In April 2013, an NLRB administrative law judge found that Pier Sixty had indeed terminated Perez in retaliation protected activity. The decision was affirmed by a panel of the NLRB board. In other words, the National Labor Relations Board determined that Perez was lawfully allowed to make his Facebook post about his boss and that the company could not legally terminate Perez because of his post. How could that be?
The National Labor Relations Act (NLRA), is the federal law which regulates unions. Section 7 of the Act provides employees with the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the act prohibits employers from terminating employees who engage in protected activity described by Section 7. Employers, however, may terminate employees who may have engaged in protected activity, but did so in an abusive manner.
At issue in Perez’s case was whether the obscenities he used in his Facebook post were abusive such that he lost the protection of the NLRA. The Court of Appeals reviewed the history of the development of the legal tests used to determine whether obscenities are protected before noting that the NLRB has now adopted a nine factor totality of the circumstances test to use for social media cases, such Perez’s case.
The Court of Appeals expressed concern about the fairness of the test, but applied it anyway, because Pier Sixty did not challenge the validity of it. Instead, the Court looked at whether the Facebook comments were so egregious that Perez should not be protected by the NLRA.
The Court was troubled by Perez’s “vulgar attacks on [the boss] and his family,” but noted that the post included “workplace concerns” including management’s treatment of employees and the impending election. The Court further noted that management had “demonstrated hostility” towards workers and so Perez’s post was “part of a tense debate” about mistreatment.
The Court also found it important that Pier Sixty had tolerated profanity in the workplace before and had previously terminated employees for using obscenities. Notably, the Court also determined that the location the comments — online — was important because online forums, such as Facebook, are a “key medium” of communication.
In reviewing all the factors, the Court held that the NLRB did not improperly find that Perez’s conduct was egregious enough to lose NLRA protections. In other words, as inflammatory as Perez’s comments were, they were nonetheless protected as comments concerning workplace conditions. The Court noted, however, — and it is important to note here — that the facts in the Perez case were at the “outer-bounds” of protected activity.
If you have questions about the NLRA, NLRB, concerted activity, or employment law questions, contact Famighetti & Weinick PLLC, employment lawyers on Long Island. We can be reached at 631-352-0050 or online at https://www.linycemploymentlaw.com.