The National Labor Relations Act (NLRA) gives employees – even at non-union places of work – the right to criticize or protest their employer’s labor policies or treatment of staff. When the law was drafted Congress wanted to allow employees to strike and protest, so the protections extend to public criticism. In recent years, “public” also means social media sites like Facebook.
In Pier Sixty, LLC and Hernan Perez, et al (March 31, 2015), the National Labor Relations Board (NLRB) ruled that an employee who called his boss obscene names on Facebook should not have been fired and was entitled to reinstatement.
The dispute involved an employee who was unhappy when his manager said in a “loud voice” that the staff should “stop chitchatting” and in a “raised, harsh tone” told them to spread out and move. During his break, the employee went outside and used his phone to post a Facebook message referring to his manager as a “NASTY M***** F***er” and a “LOSER!!!!,” and stating “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!”
After being made aware of the posting, the company fired the employee for violation of its policy against obscene language.
An unfair labor practice (ULP) was brought and the NLRB held that the employee must be returned to work. Although the Facebook post was a personal, vulgar and obscene attack on the manager, the NLRB concluded that the post was “directed at [the manager’s] asserted mistreatment of employees, and seeking redress through the upcoming union election,” which was two days away. Additionally, the NLRB found that the employee’s post was not “qualitatively different from profanity regularly tolerated by Pier Sixty.” In other words, because employees at the company regularly cursed and used obscenity, the manager should not have taken unusual offense by his employee’s facebook comments.
Employers should take note of this decision for many reasons. First– proceed with caution when terminating an employee who complains about the terms and conditions of employment. Do not be fooled by the fact that you do not currently have a union. Non-union employees are protected by this law, and a savvy plaintiff’s lawyer will know this.
Moreover- be careful about relying on policies that you don’t otherwise enforce. Here, the company justified the termination by pointing to its obscene language policy. But the testimony suggested that the policy was mere words on the page– employees regularly used obscene language and management participated and/or let it go. Selective enforcement is rarely tolerated in employment law!
Author’s contact info: Meredith S. Campbell Co-Chair, Employment and Labor Group, Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891
