Tuesday, May 2, 2017

2nd Circuit: Employer cannot fire employee for profanity-laced Facebook rant

Under the NLRA, employees cannot be fired for posting things like "Vote YES for the UNION!!!!" on Facebook - because the NLRA generally protects union organizing and support. However, even protected posts can lose their protection if they cross the line into "opprobrious" or "abusive" conduct.

In my employment law classes at Penn State, I have used a certain "go to" case to illustrate the high bar of establishing "opprobrious" conduct. The employee posted (earmuffs kids, it's about to get PG-13):
Bob (his 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!!!!!!
He got fired and filed a charge with the NLRB.

At one time, I told my class something like "can you believe it? An Administrative Law Judge (ALJ) actually held that this post was still protected! But, remember kids, that's just one ALJ . . . I doubt the NLRB itself would hold that an employer was not allowed to fire someone for this post." Then, in 2015, that speech changed to, "But remember kids, that's just one NLRB decision . . . I doubt a court would hold that an employer was not allowed to fire someone for that post."

Now, here we are. Last week, the Second Circuit upheld the NLRB decision in NLRB v. Pier Sixty, LLC. Yes, a Circuit Court of Appeals actually held that an employee could not be fired for calling his boss a "nasty mother fucker" and posting "Fuck his mother and his entire fucking family" on Facebook.

This seems facially absurd, but I'll offer a tepid defense of the Court's decision: (1) courts apply a deferential standard of review to NLRB rulings; (2) there was an upcoming union election and evidence of additional anti-union animus (the employer allegedly threatened to rescind benefits and terminate employees who voted for unionization); (3) other employees cursed all the time and did not get fired; and (4) the online forum (Facebook) did not disrupt the workplace.

But remember kids, that's just one circuit, and we live in the Third Circuit. Also, there's a new NLRB in town, so I doubt it would hold the same way (that said, see my dismal track record for predictions above).