Employers troubled by an employee who publicly airs work-related complaints in vulgar and offensive social media posts must, surprisingly, think twice before taking disciplinary action. In National Labor Relations Board v. Pier Sixty, LLC,^[3] the Second Circuit recently enforced an order of the NLRB holding that an employee’s profanity-laced Facebook post was protected by the NLRA, even though it was “dominated by vulgar attacks on [the employee’s supervisor] and his family.” As the reasoning of the Second Circuit and the Board makes clear, employers must carefully examine and consider the attendant circumstances before taking disciplinary action because such employee social media posts may, in fact, be a form of “protected concerted activity” relating to employees’ terms and conditions of employment and, as such, be protected under the NLRA.

Protection for Online Concerted Activity

Section 7 of the NLRA guarantees that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .”^[4] In turn, Section 8 of the NLRA prohibits an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] . . . .”^[5] The protections afforded by the NLRA have been held to include employees’ social media posts relating to their broadly defined terms and conditions of employment, including, but not limited to, matters deemed by the NLRB to constitute labor disputes, and union activity.^[6] Notably, the NLRA protects and ensures such rights and protections to all employees (other than supervisors and managers who are not employees under the NLRA), including employees who are not represented by unions or covered by collective bargaining agreements.

While the NLRA generally prohibits employers from disciplining/terminating an employee due to his or her union-related activity or other concerted activity concerning his or her terms and conditions of employment, the NLRA’s protections as to concerted activity are not unlimited. Specifically, an employee engaged in concerted activity may lose the protection of the NLRA if his or her conduct is “opprobrious.”^[7]

The “Outer Bounds” of Protected Speech

The charging party employee in Pier Sixty, a server employed by the respondent catering company, was angered by the harsh tone in which his supervisor directed him to “stop chitchatting” with other servers and to “spread out, move, move” during his shift. While on break, the employee accessed his Facebook account and posted the following:

Bob [the supervisor] is such a NASTY MOTHERF*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.

After the employee was terminated, he filed a ULP charge with the NLRB’s Regional Office, which issued a ULP Complaint and presented the case before an administrative law judge (“ALJ”). After a hearing, the ALJ found that the posts were protected concerted activity relating to the employee’s terms and conditions of employment. The employer appealed the ALJ’s findings to the Board in Washington, DC, which agreed that the post was both concerted and protected activity. The employer sought review by the Second Circuit of the Board’s order.

Although articulating that the employee’s conduct “sits at the outer-bounds of protected, union-related comments,” the Second Circuit concluded that this Facebook post was protected by the NLRA because, despite being “dominated” by obscene insults aimed at the employee’s supervisor and the supervisor’s mother, it encouraged employees to vote for the union in an approaching election.  

In reaching this decision, the Second Circuit examined the “totality of the circumstances” underlying the social media post and was swayed by three factors. First, the Facebook post was made just two days before a very tense union election and, despite the predominance of the “vulgar attack on [the supervisor] and his family,” it referenced workplace concerns (i.e., “management’s allegedly disrespectful treatment of employees and the upcoming union election”). In this regard, the court reasoned that the employee’s outburst “was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.” Second, the court examined how the employer handled similar transgressions in the past, finding that Pier Sixty had not disciplined, much less terminated, other employees who used profanity in the workplace. The court was influenced by the fact that Pier Sixty “consistently tolerated profanity among its workers,” which suggested that the company’s decision to treat such profanity differently in this case was at least influenced by the employee’s perceived support for the union in the then-pending election. Third, the court considered the forum in which the employee chose to convey his message, recognizing that online forums, such as Facebook, are “a key medium of communication among coworkers and a tool for organization in the modern era.” Based on these three factors, the court concluded that the employee’s Facebook post, although vulgar and inappropriate, was “not so egregious as to lose the NLRA’s protection,” and it enforced the Board’s order.

Conclusion

Both the Board’s order and the Second Circuit’s decision in Pier Sixty provide important guidance for employers that face employee postings on Facebook, Twitter, and other social media sites concerning work-related matters. The lesson that Pier Sixty provides employers is that discipline decisions cannot be made solely based on the language in an employee’s social media post, no matter how abhorrent or vile it may be. Rather, employers must evaluate the circumstances in which a social media post was made by an employee and start with the understanding that the Board and the courts provide employees with wide latitude in their use of social media with respect to employment-related concerns. Employers must look beyond the inappropriate language used and consider factors such as the timing of the post (i.e., whether it was close to election), the circumstances in which it was made (i.e., whether it was provoked by some anti-union animus in the workplace), the content of the post (i.e., whether it relates, even in some extraneous way, to union activity), and how the employer has handled similar misconduct in the past.