Profane Facebook Outburst Not a Fireable Offense

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By Lawrence E. Dubé

A catering worker reached “the outer bounds” of protected speech with a vulgarity-laced Facebook post about a supervisor, but the U.S. Court of Appeals for the Second Circuit said the worker could not be fired for his action ( NLRB v. Pier Sixty, LLC , 2017 BL 131230, 2d Cir., No. 15-1841-ag, 4/21/17 ).

The April 21 court decision highlights the need for employers to carefully examine all of the circumstances before concluding that an employee’s social media outburst justifies disciplinary action.

Pier Sixty LLC argued that by lashing out at the supervisor and his family in a message that was accessible to the public, employee Hernan Perez lost the protection of federal labor law. The Second Circuit, however, backed the National Labor Relations Board’s decision that firing Perez was an unfair labor practice.

The NLRB found the employer tolerated profanity, and the board had substantial evidence that Perez was fired because of his union activity and complaints about supervisors abusing workers, Judge José A Cabranes wrote for the court.

The company was disappointed by the NLRB ruling and had hoped the Second Circuit would reject the board’s view of the case, Thomas V. Walsh of Jackson Lewis P.C. in White Plains, N.Y., told Bloomberg BNA April 21. The company is now “exploring our options,” said Walsh, who argued the appeal for Pier Sixty.

Facebook Post Blasted Manager

The incident occurred in in October 2011, according to the court. Perez became upset when assistant banquet manager Robert McSweeney chided employees in a “raised, harsh tone” about “chitchatting” among themselves as guests arrived at a catered event.

Perez stepped outdoors and used his mobile phone to post a message on Facebook that “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!!!!!!!”

The posting—two days before employees voted for union representation—was visible to Perez’s Facebook friends and anyone else who visited his Facebook page. Pier Sixty investigated the posting and fired Perez.

Court Backs Unlawful Discharge Finding

The NLRB found that Perez was illegally fired for a Facebook posting that was “distasteful” but legally protected.

Cabranes said the board used a “totality of the circumstances” analysis that is “amorphous” and may not adequately account for an employer’s legitimate interests. But Pier Sixty didn’t object to the test, Cabranes said, and the appeals court didn’t question it.

Pier Sixty argued that whatever legal test is applied, Perez’s conduct went too far, but the court disagreed.

The court noted, however, that supervisors screamed obscenities at workers and did not fire employees for using offensive language. Cabranes acknowledged “a Facebook post may be visible to the whole world,” but he said Perez’s outburst did not occur “in the immediate presence of customers,” and it did not disrupt any catering events.

Pier Sixty failed to show Perez’s online conduct was egregious enough to forfeit the protection of the National Labor Relations Act, Cabranes said.

Judges Amalya L. Kearse and Denny Chin joined in the opinion.

NLRB attorney Amy H. Ginn in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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