Insulting the Boss Was Protected Activity 23:47, May 11, 2017

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Insulting the Boss Was Protected Activity

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In this age of increasing social media use, employers have to negotiate a fine line between protecting their online reputations and allowing their employees to engage in protected activity like trying to improve their wages and working conditions. In April 2017, a catering company learned that it couldn’t fire an employee who used his public Facebook page to post profane rants about his supervisor, because the employee’s comments were protected activity related to an upcoming union election.

The company’s employees were considering unionizing, and both sides agreed that the employer had threatened employees who participated in unionizing activities and had instituted a “no talk rule” to keep employees from discussing the union. Two days before the election, a supervisor gave orders in a “harsh tone” to employees at a catering event. On an authorized break, one of the employees posted on his Facebook page that the supervisor was a “NASTY MOTHER ****ER,” added something about the supervisor’s family, and finished with “What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Ten coworkers were Facebook friends of the employee and might have seen the post; there was a question about whether the employee knew that the public could see it. He removed the post within three days, but the company fired him anyway.

The National Labor Relations Act (NLRA) prohibits employers from firing employees for participating in protected, union‐related activity. But the US Supreme Court held in NLRB v. City Disposal Systems, Inc. that employees lose the protection of the NLRA if they engage in protected activity that is “overly abusive.”

Employee’s Conduct Was Not Overly Abusive

The National Labor Relations Board held a six-day trial and determined that the employee’s protected activity was not so abusive that he lost the protection of the NLRA. The Second Circuit Court of Appeals agreed, deferring to the NLRB’s factual determinations about the case’s specific social and cultural context.

During the trial, the NLRB had looked at the totality of the circumstances around the employee’s outburst.

First, because of the atmosphere before the union vote, the NLRA found that the employee’s outburst was not an idiosyncratic reaction to a manager’s request but instead was part of a tense debate over managerial mistreatment in the period before the election.

Second, the NLRB found that the company had consistently tolerated profanity among its workers. The NLRB believed employees who said that supervisors cursed at them on a daily basis. It was also suspicious that the employee in this case was fired for profanity two days before the union election, although no employee had ever been fired, or even sanctioned, for profanity.

Third, the “location” of the employee’s comments was an online forum that nowadays is a tool for organizing and a key medium of communication among coworkers. The company suggested that because Facebook posts may be visible to the whole world, the employee’s comments were equivalent to an unprotected public outburst in the presence of customers. But the employee’s outburst was not in the immediate presence of customers and did not disrupt the catering event. And he removed the post as soon as he realized that it was publicly available.

Be Consistent in Enforcing Policies

The NLRB and the court were both struck by the fact that a long-time employee was fired, two days before a union election, for conduct that was routinely tolerated by that company. Because the company had never fired or punished anyone for using profanity, its decision to fire the employee in this case caused concern. As we’ve discussed in the context of age discrimination cases, an employer who isn’t consistent in enforcing discipline and who doesn’t document discipline has a hard time establishing that it fired an employee for violating a company policy.

Employers can’t always control what their employees post online. But if the employer in this case had adopted and enforced a code of conduct that prohibited abuse and profanity in the workplace, its claim that it fired the employee for his profanity would have been more believable.

But employers shouldn’t despair that they can never control such outbursts, even on social media. The Second Circuit Court of Appeals said that this employee’s conduct “sits at the outer‐bounds of protected, union‐related comments.” It’s likely that the court’s decision could have gone the other way if the employee hadn’t been fired so close to the union election, and if the employer hadn’t tolerated such outbursts before.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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