!@#$% Vote Yes for the UNION! Facebook Post Protected by the NLRA? Second Circuit Says Yes
Authors: Aaron Warshaw (New York City), Shabri Sharma (New York City)
Published Date: May 3, 2017
In National Labor Relations Board v. Pier Sixty, LLC, No. 15-1841 (April 21, 2017), the Second Circuit upheld the National Labor Relations Board’s (NLRB) finding that an employee’s Facebook post, although “vulgar and inappropriate,” did not exceed the National Labor Relations Act’s (NLRA) protection. The court cautioned, however, that the claimant’s conduct sits at the “outer-bounds of protected, union-related comments.”
Two days before a union election, the claimant Perez received directions from a supervisor that Perez believed were made in a “harsh tone.” Shortly thereafter, during a work break, Perez posted a publicly-accessible Facebook message, stating:
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!!!!!!!
Although Perez took the post down one day after the election, management investigated and terminated his employment. Perez filed a charge with the NLRB, which held that the employer violated the NLRA by discharging Perez in retaliation for engaging in protected activity. On appeal, the Second Circuit deferred to the NLRB’s interpretation of the NLRA and its factual findings, including whether Perez’s Facebook post was so “opprobrious” so as to lose NLRA protection. Specifically, the Second Circuit found that, even though Perez’s message was a vulgar attack on his supervisor and family, the subject matter of the message included workplace concerns such as management’s alleged disrespectful treatment of employees and the upcoming union election.
Further, the court cited evidence that profanity was tolerated by the employer, whereas Perez, who had been employed for 13 years, was fired for profanities two days before the election. Finally, the court found that the outburst was not in the immediate presence of customers and did not disrupt the business, and that it was removed once Perez realized it was publicly accessible.
In the end, the Pier Sixty decision serves as a cautionary reminder that employers in the Second Circuit should carefully consider disciplining employees for inappropriate social media posts—especially when the employee’s post involves criticism of management and occurs at the time of an election.
Aaron Warshaw is a founding attorney of Ogletree Deakins’s New York City office. Aaron’s first-chair experience includes representing Fortune 500 companies to small businesses in single-plaintiff and class-action employment cases. He has actively litigated and appeared in jurisdictions throughout New York State, including before federal courts, appellate courts, state courts, and administrative agencies. In addition, Aaron is a trusted advisor for management in navigating and...
Shabri Sharma is an Associate in the New York City office, where she represents and advises management in all aspects of employment law. Ms. Sharma has experience in advising and counseling employers regarding employment discrimination claims, mandatory arbitration policies, independent contractor audits, terminations, severance agreements, recent legal developments, and other related employment issues. Ms. Sharma also delivers employment training to hundreds of employees. Prior to joining...