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The AR Group

Unprotected or Protected Speech?

The scenario is becoming increasingly commonplace: An employee is unhappy about something his employer has done or perhaps something his supervisor has said. As is typical when one is unhappy or downright mad, he wants to talk about the reason or reasons for his dissatisfaction, frustration, or anger over his clearly less than satisfying employment relationship. So, the unhappy employee takes to social media in an effort to share his perspective with his vast network of friends whom he ostensibly believes will find his situation to be as intolerable and unacceptable as he. Given the extent to which social networks include personal and professional friends and acquaintances, it does not take long before the employer learns of employee?s very public rant and the very clear suggestion that employer is, well, not good.

That can?t be okay?.Right?

Surely this violates some policy you say? Or, even if it does not violate a policy that you can cite to, it is reasonable for an employer to expect that employees should not be able to go out and start dissing employers, right? Well, not exactly. Remember that the National Labor Relations Act (which applies to most private-sector workplaces ? both union and non-union) protects employees who engage in protected concerted activity. Protected concerted activity is where employees discuss working conditions with one another. For those of us who routinely counsel in this area, we would remind clients that an employee who ?gripes alone? is not necessarily protected and would often suggest that employees using vulgar and obscene language would not be protected.

That is, until recently.

[Warning: This post includes some very foul language]

Protected Speech?

In Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez the National Labor Relations Board reinstated an employee who, during a work break, took out his iPhone, logged into his personal Facebook page, and posted the following comment about his supervisor:

Bob is such a NASTY MOTHER FUCKER don?t know how to talk to people!!!!!!! Fuck his mother and his entire fucking family!!!!

What a LOSER!!!! Vote YES for the UNION!!!!!!!.

It didn?t take long for the company to become aware of the posting and following an internal investigation the employee was fired.

Following a complaint to the National Labor Relations Board, in which the employee cited violation of his first amendment rights as guaranteed under the National Labor Relations Act, the Board reinstated the employee. In taking this action, the Board concluded that compared to the rest of the workplace, the post was not vulgar or offensive enough, to lose the protections of the Act:

The overwhelming evidence establishes that, while distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words ?fuck? and ?motherfucker.? Considered in this setting, Perez? use of those words in his Facebook post would not cause him to lose the protection of the Act.

Protected or Unprotected Personal Attack?

In his dissent, Member Johnson distinguished between the use of profanity in the workplace, and the ad hominem attacks Perez made against McSweeney and his family:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases ?NASTY MOTHER F?ER? and ?F?ck his mother and his entire f?ing family? are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez? statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

Even conceding a lack of evidence that Perez intended to engage in or threaten actual violence against McSweeney or his family, the posting reflects a level of animus and aggression directed toward McSweeney personally that goes well beyond the contrasting statements in the record that the employer tolerated and that are also distasteful?

What to do?

While the result in Pier Sixty strikes many (understandably) as nothing short of astonishing, the truth is that the holding does not give employees the carte blanche on social media that some might suggest or infer. If there is a lesson worth learning here, it just might be that employers are wise to take prophylactic measures against managers cursing at employees, or should at least consider implementing a more targeted policy prohibiting vulgar and obscene speech. In other words, had Pier Sixty required a certain, fundamental level of professionalism on its site and particularly from its managers, the outcome would likely have been very different. That said, remember that when you find yourself in a situation that has become increasingly commonplace ? think before you act.