You Can’t Be Fired For a Facebook Post Calling Your Boss a “LOSER”–NLRB v. Pier Sixty
This is a Facebook firing case. The employee worked at Pier Sixty, which operated a catering company in New York. In early 2011, its employees became involved in a union organizing campaign, ultimately voting to unionize. Hernan Perez worked as a server. Prior to the election, his supervisor apparently barked orders at Perez and two others: “Turn your head that way and stop chitchatting” . . “spread out, move, move.” During a break from work, Perez posted to Facebook [capitalization and punctuation in the original, obviously]:
Bob [the supervisor] 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!!!!
The post was publicly accessible, though Perez thought that only his Facebook friends, including some co-workers, could see the post. He took down the post a few days later. In the interim, the post came to management’s attention, and they terminated him.
The NLRB alleged that Perez’s termination was unlawful. An ALJ agreed, finding that Perez had been terminated for protected activity. A divided three member panel affirmed. The parties both appealed to the Second Circuit.
Perez’s post is presumably protected activity, but the employer can nevertheless terminate him if it was “overly abusive.” Courts have employed several tests to determine whether obscenities in the workplace qualifies as overly abusive. One test considers: (1) the place of the discussion; (2) the subject matter; (3) the nature of the outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practice. The Second Circuit criticized that test as giving insufficient weight to the employer’s interest in preventing outbursts “in the presence of customers.”
Separately, the General Counsel’s Office developed guidance for evaluating when employers’ efforts to curtail employee social media use violated the Act. This guidance is described as “more employee-friendly.” In light of this guidance, the Board uses a nine-factor totality-of-circumstances test. The ALJ used that test in the Perez case. The employer did not contend the ALJ used the wrong test. Instead, it appeared to challenge the factual conclusions of the ALJ and the panel.
The appeals court concludes that Perez’s firing was improper:
First, although Perez used vulgar attacks and referenced the supervisor’s family, the subject matter of the message included workplace concerns. The post protests mistreatment by management and urges a yes vote on unionization.
Second, the employer previously tolerated profanity among workers. Apparently, a chef and the supervisor here, regularly cursed at employees, including screaming phrases such as “what the fuck are you doing,” “mutherfucker,” and “are you guys fucking stupid”.
Third, the court says:
the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible. We thus conclude . . . that the Board did not err in ruling that Perez’s Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection. Nor was his Facebook post equivalent to a “public outburst” in the presence of customers and thus can reasonably be distinguished from other cases of “opprobrious conduct.”
The result is similar to another Second Circuit case where the court also found that employee speech constituted protected activity. There, the court went so far as to invalidate the employer’s blogging policy: “Anti-Employer Chatter On Facebook Protected By NLRA–Triple Play v. NLRB”. In blogging that case, I made the following observation:
the ruling also takes an employer-unfavorable approach to evaluating who the audience was to employee speech. This is the opposite of the approach in typical employee discharge cases where the employee’s arguments that a post was only viewable by his or her friends usually gets no traction whatsoever. The court flips that argument here and says that, even if customers viewed the speech, the employer can’t invoke brand harm as a basis for termination if the customers were not the primary audience.
That sounds like a similar approach to the one the court took here. The employee got the benefit of the doubt regarding the possible audience. This is unique in Facebook firing cases, where the “I didn’t know what my privacy settings were” argument usually gets little or no traction. (See the numerous cases linked below.)
* Unless they practice employment law, most lawyers don’t think much about the NLRB. However, the NLRB’s policies about employees’ use of social media are counterintuitive, and they cast a long shadow on employer activities. As painful as it will be, we have to keep tabs on the NLRB’s positions on social media law.
* Perez’s post explicitly referenced the unionization effort, which dramatically increased the odds that the NLRA applied. However, the NLRA can apply even when unionization is not on the horizon. So it’s possible the NLRB would have reached the same result even without Perez’s last sentence. Still, Venkat and I have reported on so many cases where employees have lost their jobs for intemperate remarks on Facebook. An employee-favorable ruling in this circumstance doesn’t change the overall perspective that online bitching about your job and your boss remains a high-risk strategy.
* The appellate court opinion spends extra time grokking the implications of saying “Fuck his mother.” Apparently the judges were more bothered by an F-bomb directed at mom than at other offensive aspects of Perez’s post.
* As we all know, our President routinely calls just about everyone else a “LOSER”—even his own 4 year old son. It’s become one of the many not-so-funny peculiarities of our president. In light of that, of course Perez should have unfettered discretion to call his boss, or just about anyone else, a “LOSER.” He’s just following the role modeling by our country’s leader.