Employers, what would you do if an employee made a post on Facebook that referred to his/her supervisor as a “nasty mother***er” and also stated “f**k [the supervisor] and [his/her] entire f***ing family?” It’s a no-brainer that you would fire them, right? A recent court decision shows that the answer is not so easy when the National Labor Relations Act is involved.
The United States Court of Appeals for the Second Circuit recently ruled on a case where an employee was fired for using profanity soon after making the vulgar comments listed above. Here’s where things get tricky: the employee ended his post—which was made during a union organizing campaign—by appealing to his co-workers to vote for the union. In addition, the employee was fired two days before the union election. Further, the employer rarely disciplined employees for using profanity and had not terminated any other employee for that conduct.
The National Labor Relations Board found in favor of the employee and reinstated him with back pay, finding that the employer had terminated him in violation of the NLRA due to his “protected concerted activity.” The Second Circuit affirmed the Board in late April, ruling that the “totality of the circumstances” indicated that the employee’s post—which was profanity-laden and aimed at his supervisor and his family—was not so abusive so as to strip the employee of the NLRA’s protections. In coming to this conclusion, the court emphasized the workplace-related content of the post, the timing of the employee’s termination, and the employer’s tolerance of widespread profanity by both employees and supervisors in the workplace.
In addition to showing the applicability of the NLRA to non-union employers and the Board’s focus on social media in recent years, this decision highlights the importance of being consistent in enforcing workplace rules. For questions about disciplining employees or any other labor and employment issue, please do not hesitate to contact a member of our Labor and Employment Department.