Profanity-Laced Social Media Posts May Be Permissible in the Context of a Union Organizing Campaign

Q.  Can I fire an employee for making disparaging comments about the company and its supervisors on social media?

A.  According to a recent Second Circuit opinion, if the social media post was made in the context of union organizing activity, then the answer likely is no. The National Labor Relations Act (“NLRA”) prohibits employers from terminating an employee based on that employee’s union-related activity. If the employee’s protected activity rises to the level of “opprobrious” or abusive conduct, however, it could lose the protection of the NLRA.   Nonetheless, the standard for a finding that the employee engaged in “opprobrious” or abusive conduct is quite high.

In NLRB v. Pier Sixty, LLC, an employee posted a Facebook message encouraging other employees to vote for the union and referred to his supervisor as a “loser” and a “motherf*cker.” The employee even went to so far as to disparage the supervisor’s family, posting:  “F*** his mother and his entire f***ing family!!!!”

The NLRB found that the comment did not rise to the standard of “opprobrious” conduct because it was made in the context of an upcoming union election. The Second Circuit agreed. According to the court, even though the employee’s message was dominated by vulgar attacks on the company’s supervisor and his family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the union election. The court also noted that the company had demonstrated hostility toward the employees’ union activities, including threatening to rescind benefits and/or fire employees who voted for the union and enforcing a “no talk” rule preventing employees from discussing the union.

Further, the court considered it important that the company had tolerated profanity in the workplace on a daily basis, issuing only five warnings in six years and not discharging anyone for using profanity prior to the employee at issue. In addition, the court said that the supervisors, including the one whom the Facebook post was directed at, cursed at employees including using the “f” word on a daily basis. The court concluded that “it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”

Finally, and most disturbingly for companies trying to maintain their online reputations, the court concluded that, while Facebook posts may be visible to the entire world, “Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event.” Calling the case as sitting at the “outer bounds of protected, union-related comments,” the Second Circuit upheld the NLRB decision.

So, what does this mean for companies trying to maintain a professional workplace?

First, it crucial to apply discipline consistently.  If Pier Sixty had discharged other employees for using profanity outside of the union-organizing campaign – and prohibited its supervisors from cursing at staff – it would have had a much stronger argument that the Facebook message should not be tolerated.

Second, employers should tread carefully – and consult with counsel – before disciplining employees for social media activity, particularly in the context of union activity.

Tracey E. Diamond

New York City Ban On Applicant Salary History Inquiries Effective October 31, 2017

Q. When will the new salary history law go into effect in New York City?

A. Effective October 31, 2017, employers are barred from asking job applicants in New York City about their salary history. The bill, which was passed by the New York City Council in early April, was signed into law by Mayor Bill di Blasio on May 4, 2017.

Salary history includes “current or prior wage, benefits, or other compensation.” The ban includes inquiries to an applicant’s current or former employer and searches of publicly available information for salary history.

To ensure compliance, employers should ensure that job applications for positions in New York City do not include inquiries about salary history. Employers should also update their internal policies and interviewing guidelines to ensure all relevant personnel are aware of the change.

For additional information, please see our previous post on the new law here:

– Jessica Rothenberg

Comp Time in Lieu of Overtime

Q.  An employee worked several hours of overtime last week. Can I offer him compensatory time off, to use in the future, rather than pay him overtime?

A.  Currently, unless you are a public-sector employer, the answer is no. Under the Fair Labor Standards Act, employees who are not exempt must be paid overtime pay (one and one-half times their regular pay rate) for all hours worked over 40 in a work week.

That may soon change, however.

Just yesterday, the House of Representatives passed a bill that would amend the Fair Labor Standards Act to allow certain employees to take paid time off rather than receive overtime pay when working more than 40 hours in a week.  Dubbed the Working Families Flexibility Act, the Bill would allow employees to accrue up to 160 hours of compensatory time in a year, at a rate of 1.5 hours for each hour of overtime worked.

The Bill contains some guidance on how to administer such a policy. The employer may provide compensatory time to employees in lieu of overtime pay only if the arrangement is agreed to through a collective bargaining agreement or  in a written agreement between the employer and employee.  The employee must be allowed to use the comp time within a reasonable period after the request, so long as the comp time does not “unduly disrupt the operations of the employer.”

To become eligible to participate in a comp time program, employees will have to have worked at least 1,000 hours of continuous employment in the 12-month period preceding the date of the agreement or receipt of comp time.

Any unused comp time would have to be paid back by the employer at the end of the year (or upon 30 days of notice by the employee in the case of accrued time in excess of 80 hours). Significantly, an employee who has accrued compensatory time off also must be paid for the unused comp time upon termination, regardless of whether the termination was voluntary or involuntary.  In this way, comp time would need to be handled differently from accrued vacation time, which is not necessarily subject to pay upon termination, depending on state law.

It remains to be seen whether this Bill will become actual law, or if it does, whether it will be modified to pass the Senate. If it does pass through the Senate, however, the President has pledged to sign it.

If this option becomes available to private-sector employees in the future, employers will have to take a hard look at their processes to determine whether offering comp time in lieu of overtime makes sense for their organization. While some employers may applaud this initiative as a cost-saving method and a way to provide flexibility to employees, others may see such a program as an administrative burden.

– Tracey E. Diamond