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.