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May 9, 2017

Federal Court Affirms Broad Protection for Employee's Use of Social Media

On April 21, 2017, the United States Court of Appeal for the Second Circuit issued a decision in the matter of the National Labor Relations Board ("NLRB") vs. Pier Sixty, LLC. One of the key issues in the case was whether the employer, Pier Sixty, violated the National Labor Relations Act ("NLRA") when it terminated an employee, Hernan Perez, based on an offensive comment the employee posted on his Facebook page about one of his managers. Ultimately, the Court found that Pier Sixty did violate the law and that the employee's Facebook post was protected under the NLRA, despite the fact that it used offensive and derogatory language toward the manager.

With regard to the facts of the case, Pier Sixty operates a catering company. During the relevant time period, many of Pier Sixty's service employees began seeking union representation. There was an admittedly tense organizing campaign in which the company threatened to penalize or discharge employees for engaging in union activities – such conduct is undeniably impermissible under the NLRA, but was not at issue in the lawsuit. However, it was in the context of this tense time-period that the conduct at issue occurred and such context certainly played a role in the Court's analysis.

The employee at issue, Perez, was working as a server at a catering event. The manager allegedly gave directions to Perez and other employees in a "harsh tone" that upset Perez, who viewed the manager's conduct as another instance of management's continuing disrespect for employees. Shortly thereafter, during an authorized break from work, Perez used his phone to post a message to his Facebook page stating:

[The manager] is such a NASTY MOTHER [!&#@] don't know how to talk to people!!!!!! [!&#@] his mother and his entire [!&#@] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Perez was aware that his Facebook "friends," which included a number of coworkers, would be able to see his post, though he stated that he was not aware the post was also accessible to the public generally. Perez took the post down three days later, but Pier Sixty management had already learned of the post and terminated Perez after an investigation.

The NLRA protects an employee from being discharged for engaging in union-related activity. Specifically, § 7 of the NLRA guarantees employees the right to engage in concerted activities "for the purpose of collective bargaining or other mutual aid and protection," and §§ 8(a)(1) and 8(a)(3) prohibit an employer from discharging employees for engaging in such activities. The legal issue with respect to the Facebook post was whether it fell within the category of "union-related speech" that is protected under the NLRA, or whether it was so "opprobrious" (i.e. exceedingly offensive) that it was not entitled to protection.

In determining that the post was entitled to protection and did not cross the line into "opprobrious" speech, the Court noted the NLRB's trend over the past several years of evaluating employee social media use in an "employee-friendly direction," even where employees post public criticism of their employers and workplace. Turning to the post itself, the Court found that, although the message was "dominated by vulgar attacks" on the manager and his family, the "subject matter" of the message included "workplace concerns," including management's alleged disrespectful treatment of employees and the then-upcoming union election. The Court also noted the context in which the message was posted, i.e. during the tense union organizing campaign in which there was admittedly misconduct by Pier Sixty in terms of threats against employees for engaging in union activity. The Court further found that the evidence demonstrated that Pier Sixty "consistently tolerated profanity among its workers," and that no other employees were previously disciplined for the use of profanity in the workplace. Lastly, the Court found that the "location" of the comments was significant. The Court stated that the "online forum" of Facebook was a "key medium of communication among coworkers and a tool for organization in the modern era." The Court also noted that the post "was not in the immediate presence of customers nor did it disrupt the catering event" at which Perez was working.

Thus, the Court concluded that under the "totality of the circumstances" the post was not so egregious as to lose the protection of the NLRA. The Court did specifically indicate that the case "seems to us to sit at the outer-bounds of protected, union-related comments" and further noted that any test for evaluating "opprobrious conduct" needed to be sufficiently sensitive to address an employers' legitimate disciplinary interests. In this regard, the decision, while not providing any answer, was critical of the NLRB for not having a more usable test for determining when conduct does go in the "opprobrious" and, thus, unprotected realm.

In the end, while this particular case does present a unique set of circumstances, the decision generally represents the ongoing trend of "employee-friendly" determinations with respect to the use of social media as it relates to employment. As the Court noted in its decision, the NLRB over the past several years has been harsh with respect to employer attempts to restrict or even limit employees' use of social media, even when it is used to criticize or disparage the employer and its business practices. Accordingly, employers must continue to be extremely careful in attempting to take action against an employee based on comments made about the employer, in particular when such comments are made through social media, and must consider the "totality of the circumstances" surrounding the comments to assess (a) whether the comments could be related to "workplace concerns" (even if contained in a "vulgar shell"), and/or (b) whether, even if the comments are directed to "workplace concerns," the content of the message goes so far beyond the bounds of decency so as to become "opprobrious" and outside the protections of the NLRA.

If you have any questions about compliance, or are unsure how this new enforcement initiative may impact your business, please contact the Labor & Employment attorney at Barclay Damon with whom you normally work or any attorney in our Labor & Employment Practice Area.


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