The U.S. Court of Appeals for the Second Circuit has ruled that an employee’s profanity-laced social media post targeting his supervisor (and the supervisor’s family) lay at the “outer-bounds” of permissible conduct, but nonetheless was protected under the National Labor Relations Act (NLRA).
The court’s decision in NLRB v. Pier Sixty, Nos. 15-1841, 15-1962 (2nd Cir., April 21, 2017), affirms a ruling by the National Labor Relations Board (NLRB) finding that the company unlawfully fired an employee for a Facebook posting made two days before a union representation election. According to the court, although the post contained “vulgar attacks” against the family of his supervisor, it also expressed workplace concerns and encouraged employees to “vote yes” at the upcoming election.
In the Second Circuit’s view, the timing of the post, combined with the fact that no employee had ever been disciplined — let alone terminated — for profanity, weighed in favor of finding that the post did not amount to “opprobrious or abusive” conduct that would forfeit the NLRA’s protections.
Regrettably, the decision is the latest in a long series of conflicting NLRB and court decisions parsing when an employee’s profane speech “crosses the line,” leaving employers unsure as to when or if they can appropriately discipline employees for apparent misconduct.
Members of the Equal Employment Advisory Council (EEAC) can read more here.