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Apr 3, 2015

By Eric B. Meyer

By now, all of us have read the articles, which claim that the law permits your employees to complain about work on social media — and keep their jobs.

Well, that’s not exactly true. The National Labor Relations Act, which applies to most private-sector workplaces — both union and non-union — protects employees who engage in protected concerted activity. Protected concerted activity is where employees discuss working conditions with one another.

But, an employee who gripes alone is not protected. Also, vulgar and obscene comments are not protected.

Until now.

Did you kiss your mother with that mouth?

In Perez Pier Sixty, during a work break, an employee took out his iPhone, went on his personal Facebook page, and posted the following about an Assistant Director, Robert McSweeney:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!!! F**k his mother and his entire f**ing family!!!!

What a LOSER!!!! Vote YES for the UNION!!!!!!!.

I don’t want to say that’s vulgar and obscene, but even Gunnery Sergeant Hartman from Full Metal Jacket was blushing when he read it.

The company didn’t like it much either. A co-worker, who was Facebook friends with this Shakespearean author, showed the post to HR. The company then investigated and fired the employee.

The NLRB protects even obscene comments about a supervisor

Well, the National Labor Relations Board read the Facebook post and reinstated the employee. According to the NLRB, the post was not vulgar or offensive enough, compared to the rest of the workplace, to lose the protections of the Act:

The overwhelming evidence establishes that, while distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.”

So, was this a protected or unprotected personal attack?

“A slur against his family … a vicious attack on them”

In his dissent, Board Member Harry I. Johnson, III distinguished between the use of profanity in the workplace, and the ad hominem attacks employee Perez made against supervisor McSweeney and his family:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

Even conceding a lack of evidence that Perez intended to engage in or threaten actual violence against McSweeney or his family, the posting reflects a level of animus and aggression directed toward McSweeney personally that goes well beyond the contrasting statements in the record that the employer tolerated and that are also distasteful…

Takeaways for employers

In case there was any lingering doubt about where this NLRB’s sensitivities lie, wonder no more.

But, that’s not to say that your employees have carte blanche on social media. Presumably, if this employer had taken prophylactic measures against managers cursing at employees, or had a more targeted policy against such vulgar and obscene speech, then the outcome could have been different.

But let’s take a few more steps back. Maybe, just maybe, if this company had treated its employees with more respect, they could have avoided a nasty Facebook post from one of its employees — and a union for all of its employees.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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