Part I. Introduction
Social media has become a game changer in the way we communicate and the courts are attempting to deal with such technology-based communications in the context of existing laws. Although it has had a huge impact in the area of intellectual property law, the impact of social media on other areas of the law may be less well-known. Technology allows anyone to send of negative missives about anybody by the mere press of a button into cyberspace. What if the sender is an employee who complains about an employer, boss, supervisor, etc.? Can an employer fire such an employee? It depends on the purpose behind the derogatory missives and whether existing law prevents the employer from firing such an employee.
Part II. Discussion of the April 27, 2017 Decision by the Second Circuit Court of Appeals in the Matter of the National Labor Relations Board v. Pier Sixty, LLC. Take-home points are provided in Part III.
The National Labor Relations Act (NLRA) prohibits employers from firing an employee engaged in concerted or union-related activity. Section 7 of the Act guarantees employees the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. 157.
The National Labor Relations Board (NLRB) is charged with the task of determining whether an activity falls within the meaning of Section 7. An order issued by the NLRB may include directives to pay a fine, cease and desist from such unfair labor practices, and to take such affirmative action including reinstatement of employees with or without back pay and other necessary steps that will effectuate the policies of the subchapter. 29 U.S.C. §§ 160(a)-(c). See also footnote 14 of the decision.
Sections 8(a)(1) and 8(a)(3) of the NLRA prohibits employers from firing employees in retaliation for participation in protected union-related activity. The protected activity includes the right of employees to discuss unionization and participate in meetings and communication with other employees. In today’s technological world, this communication may well encompass social media as a conduit to communicate with other employees. Yet, under the NLRA, the employee cannot act in such an abusive manner that he loses the protection of the NLRA.
In Pier Sixty, employee Hernan Perez (“Perez”), had posted a profanity-laced four sentence tirade on Facebook. The first three sentences included vulgarity directed to his supervisor and the supervisor’s family. The last sentence stated, “Vote YES for the UNION!!!!!!!” Perez testified that he did not realize the tirade would appear publicly and that he thought his Facebook page was private. His Facebook page included ten fellow employees as friends. As it turned out, Perez removed the posting three days later but by then the post had come to the attention of the management. He was fired about two weeks later.
On the same day as his firing, Perez filed a charge with the NLRB that he had been terminated in retaliation for “protected concerted activities.” A second charge was filed by the employee who had led union organizing efforts at Pier Sixty. The administrative board found that Perez had been fired in retaliation for protected activity (his Facebook post) under the NLRA. The NLRB filed an application for enforcement with the Second Circuit Court of Appeals and Pier Sixty filed a cross-petition for review. The Court concluded that Perez’s conduct was not so “opprobrious” as to the lose the protection of the NLRA. It is clear from the opinion that the Court was not “happy” with Perez’s conduct but rested its conclusion heavily on the deference afforded the NLRB’s interpretation of the NLRA. The decision’s final sentence states: “We note, however, that Perez’s conduct sits at the outerbounds of protected, union-related comments.” Our emphasis.
A different outcome might have been reached if the employer itself had not exhibited questionable conduct towards its employees. Specifically, this conduct was as follows:
The employer had:
- Demonstrated hostility towards employees’ union organization activities just prior to the election;
- Threatened to rescind and/or fire employees who voted for unionization;
- Enforced a “no talk” rule on groups of employees, including Perez, from discussing unionization;
- Consistent tolerating profanity among the employees and managers and seldom disciplined any employee from using the type of vulgar language that appeared in Perez’s Facebook post; and
- Fired Perez just two days before the vote when he had never been disciplined for his use of similar language during his thirteen years of employment. The work environment was apparently one laced with “bad” language from the top down.
The outcome might also have been different had Perez not actually referred to unionization in his Facebook post or had his outburst been in the immediate presence of customers or had he disrupted a catering event for which the employer had been hired. The fact that he had quickly removed his post once he realized it was not private was also in his favor. In siding with Perez, the Court noted that his comments were on an online forum that “is a key medium of communication among coworkers and a tool for organization in the modern era. . .Nor was his Facebook post equivalent to a “public outburst” in the presence of customers and can thus be distinguished from other cases of “opprobrious conduct.” In this case, the NLRB’s conclusions were ratified but the Court noted that any test for evaluating “opprobrious conduct” must be sufficiently sensitive to the employers’ legitimate disciplinary interests. Pier Sixty, LLC Court citing NLRB v. Starbucks Corp., 679 F.3d 70, 79 (2d Cir. 2012)
Part III. What is an Employer to Do?
Social media is here to stay. How can an employer protect its legitimate disciplinary interests in the age of Facebook, Twitter, etc. but not run afoul of Section 7? Should an employer have a social media policy spelling out what an employee can and cannot communicate about in social media? A policy may be very useful – but it must be emphasized that the NLRA vigorously defends employees’ rights to communicate on matters related to the terms and conditions of their employment in a concerted fashion. Several cases handled by the NLRB show that any ambiguity as to what the employer’s social media policy does or does not allow may well be construed in favor of the employee.
For example, generalizations such as “be respectful in your social media communications” may even be unlawful under Section 7 of the NLRA if it could be deemed by employees to include complaints about terms and conditions of employment. Also, as the Pier Sixty decision demonstrates, protected employee social media communications under the terms and conditions of employment do not need to be couched in sugary terms. Perez’s profane speech was found to be protected, albeit “borderline protectable” speech under the NLRA. Additionally, ambiguity about whether a provision of a social media policy is restricting protected Section 7 rights will likely cause that provision to be unlawful.
In conclusion, a well-written social media policy for employees that is commensurate with the requirements of Section 7 may be extremely helpful for both the employer and the employee. Such a policy will also be useful for all levels of managers who may have no idea of employees’ rights under Section 7. It is quite possible that Pier One had no idea that its actions by and through its managers to curtail union-related discussions were unlawful even before Perez’s Facebook post.
We hope the post was instructive. If you are an employee and have concerns about your current social media policy or would like to have an appropriate social media policy in place, contact the office for a complimentary consultation to discuss your matter.
© 2017 by Troy & Schwartz, LLC
WE THANK YOU FOR READING THIS BLOG. HOWEVER, THE FOREGOING IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY. IF YOU ARE CONTEMPLATING ANY ACTION THAT MAY HAVE LEGAL CONSEQUENCES, YOU SHOULD CONSIDER CONSULTING WITH AN ATTORNEY.
