Under the National Labor Relations Act (“Act”), employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act. But how far can employees push the boundary before their conduct will be found indefensible?
The National Labor Relations Board (“Board”) surprised many in its March 31 decision in Pier Sixty, LLC and Hernan Perez, 362 NLRB 59 (2015), when it found that language of the most offensive degree was not “so egregious as to exceed the Act’s protection.” Id. at *3.
The employer in the case, Pier Sixty, operated a catering service in New York. Beginning in January of 2011, a number of employees developed interest in forming a union, allegedly in large part because management treated them disrespectfully. On October 25, two days before the union election, the named claimant Hernan Perez was working at a fundraising event when a manager named Bob McSweeney loudly instructed him and another employee to “turn your head that way and stop chitchatting.” After a second such reprimand, Perez became frustrated and took a short break outside. During this time, he accessed his personal Facebook profile page from his phone and posted the following statement:
Bob is such a NASTY MOTHER F***** don’t know how to talk to people??? F*** his mother and his entire f****** family?? What a LOSER?? Vote YES for the UNION???!!
Id. (redacted for print). The post was visible to Perez’s “Facebook friends,” including several coworkers. Perez deleted the post three days later, the day after the election.
Before he deleted his post, however, a manager at Pier Sixty saw it and printed a copy. Perez was terminated about two weeks later for violation of company policy.
Perez filed an unfair labor practice charge, alleging that his termination was an act of retaliation for his protected activity and violated Section 8(a)(1) and (3) of the Act. To determine whether the nature of Perez’s Facebook comments removed him from the Act’s protection, the Board applied an expanded version of the traditional four-factor test from Atlantic Steel (what the dissenting panel member described as the “Atlantic Steel test on steroids”). In addition to applying the four Atlantic Steel factors of (i) the place of the discussion, (ii) the discussion’s subject matter, (iii) the nature of the employee’s outburst, and (iv) whether the employer provoked the outburst, the Board also cobbled together “totality of the circumstances” factors from previous Board cases in considering (i) employer’s antiunion hostility, (ii) whether employee was impulsive or deliberate, (iii) whether the employer considered language similar to that used by employee to be offensive, (iv) whether the employer maintained a specific rule prohibiting the language at issue, and (v) whether the discipline imposed upon employee was typical of that imposed for similar violations or disproportionate to his offense.
In applying the facts to the factors, the Board determined that the ALJ did not err in ruling that Perez’s Facebook comments constituted protected, concerted activity and union activity. Aside from the more apparent facts which tend to support the enumerated factors above, the Board focused on a record replete with examples of employees regularly using profane and offensive language in the workplace. Such an emphasis away from the individualized nature of the employee’s comments and towards the overall environment of the workplace pushed several factors into the employee’s favor.
Ultimately, many employers would feel justified in terminating an employee for comments directed at management as profane as those posted by Perez, which is what makes the Board’s decision in Pier Sixty, LLC and Hernan Perez so surprising. Employers must consider disciplining employees for social media communications very carefully. As the law is currently both in flux and highly unpredictable, managers cannot rely on their common sense judgment alone to guide them. Moreover, employers would be wise to consistently enforce any policies covering bullying or the use of offensive language in the workplace, considering the Board’s willingness to use the prevalence of workplace profanity as a reference point in determining the protected activity issue. If you have questions about your company’s social media policy or employee handbook, consider consulting your attorney before taking action.