Category Archives: Social Media

Second Circuit Holds Pro-Union Sentiment Outweighs Impropriety of Profanity-Laden Rant Against Supervisor, His Mother, and “His Entire ****ing Family”

Use of profanity by employees, whether in the workplace, outside the workplace, or on social media, presents difficult legal issues for the employer, as highlighted by a recent Second Circuit Court of Appeals decision overturning the firing of an employee who engaged in a highly profane Facebook rant against a supervisor. Although an employer has a justifiable interest in keeping profanity out of the workplace, its interest does not overshadow an employee’s Section 7 protected rights to engage in concerted activity under the National Labor Relations Act (“NLRA”).

In yet another NLRA-social media decision (see here and here), the court considered whether the vulgar and offensive language – directed at a supervisor – in an employee’s statement advocating for unionization is protected activity under the NLRA. See NLRB v. Pier Sixty, 855 F.3d 115 (2d Cir. 2017).  The court held that language was protected and overturned the company’s termination of the employee in question.

Two days before a union election, an employee posted the following statement on Facebook:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was visible to the public for three days before the employee took it down. Company management saw the post before it was removed and terminated the employee. An unfair labor practice charge followed shortly afterward, alleging a violation of section 8(a)(1) of the NLRA.

Section 7 of the NLRA guarantees employees the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  29 U.S.C. § 157 (emphasis added).  Section 8(a)(1), in turn, protects these rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of these rights.  29 U.S.C. § 158(a)(1).  Ordinarily, an employer is prohibited from discharging employees for participating in union-election activity, and the employee’s Facebook post did explicitly call for a pro-union vote in the upcoming election.  But the protections of the NLRA are not absolute.  The National Labor Relations Board (“NLRB” or “Board”) has long held that an employee engaged in “ostensibly protected activity may act in such an abusive manner that he loses the protection” of the NLRA. See NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 837 (1984).

Here, the NLRB had ruled in favor of the employee. The Second Circuit upheld the Board, agreeing that the statement came close to, but did not cross, the line.  The Board and the court applied a “totality-of-the-circumstances” test.  Although the court gave considerable deference to the Administrative Law Judge’s factual findings (which were upheld by the Board), employers can find some comfort in the court’s note that the post seems “to sit at the outer-bounds of protected, union-related comments.”

The court provided several reasons for its decision:

  • First, although the post can be characterized as “dominated by vulgar attacks” on the supervisor, the message addresses the workplace concern of how management treats employees, qualifying the post as “concerted activity for the purpose of collective bargaining.”
  • Second, profanity among employees had been consistently tolerated by the employer, so it could reasonably be inferred that the employee was not fired for mere profanity, but for the protected, union-related content of the comment.
  • Third, the employer had engaged in other unlawful, anti-union conduct as the election approached, including threatening pro-union employees with the loss of their jobs or benefits, and by implementing a “no talk” rule prohibiting discussion of union issues.
  • Fourth, the court gave some weight to the fact that this post was made on Facebook—“a key medium of communication among coworkers and a tool for organization in the modern era,” and that the employee apparently (although erroneously) believed the post would not be publicly available. The court found that the Facebook posting was different from an outburst in the presence of customers.

Accordingly, there are a few takeaways for employers to keep in mind.

  • Implement a Clear, Written Policy. To effectively discipline employees for using offensive or vulgar language at the workplace, employers should have a clear written policy against profanity that informs employees of the rules regarding the use of profane or vulgar language in their interactions with colleagues and customers. The policy should specify the consequences for violations.
  • Enforce the Policy Consistently and Uniformly. Employers should be consistent in enforcing any policy against profanity in the workplace. Past failures to enforce or to impose appropriate sanctions may tie the employer’s hands in future situations where a sanctionable activity may arguably be clothed with NLRA-protection. (Consistency would necessarily include, for example, applying the policy to profanity by supervisors and managers as well as by line employees. The employer’s tolerance of profanity by supervisors was cited by the court as proof of inconsistent enforcement.) Consistent and uniform enforcement of the policy is key.
  • Be Careful Not to Limit Protected Activities. The enforcement of a policy against profanity or other inappropriate conduct must be balanced against an employee’s right to engage in protected activities under the NRLA. The employer’s other anti-union conduct in the Pier Sixty case was a factor in the decision. The Pier Sixty court has made clear that not all offensive language loses NLRA-protection. This decision confirms courts’ willingness to broadly construe the coverage of the NLRA, especially when considering employee activities on social media. Employers should carefully consider the context of potential profanity policy violations before taking disciplinary actions.

When faced with the question of whether to fire an employee who uses vulgar and offensive language in a Facebook post directed at a supervisor and her family, you should first determine whether the subject matter of the Facebook comment touches on any workplace concerns. If not, there may not be NLRA- protected conduct. But if the subject matter—notwithstanding the vulgarity—is arguably related to working terms and conditions, you should take extra caution to make sure that any discipline will not run afoul of the NLRA. Consider the company’s practice with regard to policing profanity at work. If the company has tolerated profanity use among its employees in the past, you may not be in a good position to sanction an employee for a statement that, although offensive, may be protected under the NLRA.

Quirky Question #279: Concerted Activity in 140 Characters or Less

Question: I am a manager in a medium-sized retailer that has locations and employees in 16 states.  The company maintains a social media policy, which was recently updated.  Last week, I noticed that one of our employees posted some pretty nasty things about the company on Twitter.  She accused the company of not treating employees fairly because some had to work on days when others did not.  Perhaps worse, in response to customers who were praising the company’s products and services, she basically called the company cheap by saying it did not provide good pay or benefits.  I have not noticed any reaction from other employees to the tweets, but I am worried they will hurt employee morale and possibly drive away customers.  Is there anything I should consider before disciplining the employee who tweeted these things?

Answer→

Quirky Question #269: Like it or Not – Facebook Post Protected Under the NLRA

Question: I own a small manufacturing company that employs 25-35 employees, depending on our workload.  Over the years, a number of my customers and my employees have “friended” me on Facebook.  Last week, I saw that one of our employees had posted a comment that I don’t pay enough overtime and that I’m, “f—ing cheap,” because I don’t give enough paid vacation.  Almost worse, I saw that three other employees “liked” the post.  I work hard to treat my employees fairly, and to ensure that I staff adequately so that employees do not need to work overtime.  I’m afraid this post is going to hurt employee morale, and I’d like to fire the employee who posted and the ones who liked the post.  Is there anything I should consider?

Answer→

Quirky Question #206, NLRB

 Question:

I discovered one of my employees announced on Facebook that our company is a horrible place to work and she is just “coasting” and waiting to be fired.  Normally, I would just fire her, but our CFO is worried that internet communications between employees in social media can be “protected.”    What is the recent law? Answer→

Another Social Media Report by the NLRB Offers Needed Guidance for Employer Policies

Another Social Media Report by the NLRB

The National Labor Relations Board released its second Social Media Report in January of this year providing the General Counsel’s analysis of 14 challenged employer social media policies.  The Board last week released another Report reviewing seven additional employer policies. The Board alleged that six of these policies interfered with employees’ rights under the National Labor Relations Act (NLRA), and found one policy to be lawful. While much of the new Report reiterates prior analysis, the Board significantly expands upon its views of employees’ rights to discuss confidential company and coworker information online. Most importantly, the Board expressly approves and fully quotes one particular social media policy, which may serve as a useful guide for employers to review or create their own policies. Answer→

Think You Own Your LinkedIn, Twitter and Facebook Account? Think Again!

You may not, as reflected in the recently reported decision of Eagle v. Morgan, 2011 WL 6739448 (E.D. Pa. December 22, 2011) where both the employee and her former employer claim ownership in the employee’s LinkedIn account, the popular social networking site for business professionals.  The dispute is starkly drawn in the litigation’s opposing pleadings and provides a strong warning to the hundred million plus LinkedIn users and other users of social media who operate under the assumption that their social media accounts belong solely to them to transfer as they please when they change jobs. Answer→

Happy Holidays From The NLRB: Your Carefully Crafted Social Media Policy May Amount To A Per Se Violation Of The National Labor Relations Act

Set forth below is the article from one of our partners regarding the recent NLRB Complaint, stemming from a posting on Facebook.

Happy Holidays from the NLRB

Depending on the study cited, as many as:

• 79% of people in the U.S. age 18 and older were on-line in some fashion as of May 2010
• Of those on-line adults, 61% used social networking sites (up from 46% of on-line adults just last year)

Source: PEW Internet and American Life Project

• Approximately one-third of U.S. companies have a social media policy (other surveys report more than one-half their respondents have such policies)

Source: Manpower Social Media Survey, January 2010

• More than one-half of U.S. companies block access to social media sites from work

Source: Robert Half Social Media Monitoring Tools Survey, October 2009

• As many as 15% of U.S. companies have disciplined employees over social media issues
• 8% of U.S. companies have reported discharging someone over social media issues (up from 4% in the same survey in 2009)

Source: Proofpoint Outbound E-mail and Data Loss Prevention, 2010

The ease of use and dissemination, the spontaneity of communications, the perceived anonymity of on-line personas – in other words, all the things that likely attract people to social media – also present real challenges for employers. Whereas before, employers had to concern themselves only with the occasional improper e-mail that might be seen by a handful of individuals, Facebook posts, Twitter feeds, and other on-line content can quickly “go viral” and be seen by tens or hundreds or thousands of people. With the stakes raised, employers are growing increasingly vigilant and decreasingly tolerant of careless social media behavior. As a result, both corporate policies and the law are struggling to keep pace with the social media age. Answer→