A few months ago, the Second Circuit considered the case of a catering company server who was fired for posting this comment about his supervisor on Facebook (profanity edited):
Bob is such a NASTY MOTHER F[@%#*!] don’t know how to talk to people!!!!!! F[@%#*!] his mother and his entire f[@%#*!]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The employee posted this comment during an authorized break from his job and knew approximately ten of his coworkers would be able to see the post by virtue of their Facebook friendships.
At first glance, and without understanding the context, this comment looks like something that could get an employee in trouble. Context, however, is always key. The server posted this comment two days before he and his colleagues were scheduled to hold a unionization vote following a tense organizing campaign. Management attempted to fight off the unionizing effort by (illegally) threatening to retaliate against the union supporters. The server was specifically responding to his supervisor’s rude tone, which he perceived as part of the pattern of disrespect from management that drove the unionization effort. Because the server’s Facebook post was union-related speech, and because such speech is specifically protected by the National Labor Relations Act (“NLRA”), his comment requires more scrutiny.
The ultimate question on the merits of the case was whether the server’s Facebook post was so “opprobrious” to lose the protections of the NLRA. The Court agreed with the National Labor Relations Board’s (“NLRB”) conclusion that the server’s post was not so egregious to lose such protection, and therefore management could not discipline him for his comments. Although the Second Circuit questioned the validity of the NLRB’s “totality of the circumstances” test, the Court was persuaded that the comments deserved protections for three reasons. First, the subject matter of the post was workplace concerns, i.e. management’s disrespectful treatment of its employees. Second, the evidence demonstrated that management routinely tolerated profanity. And third, the comment was made in an online forum that is a “key medium of communication among coworkers and a tool for organization in the modern era.” The Court noted, however, that this fact pattern sat on the “outer-bounds” of protected union speech. It’s a good thing for the server that he added the sentence “Vote YES for the UNION!”
The case is NLRB v. Pier Sixty, LLC, and the full text can be found here.