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NLRB Rejects Profane Employee Facebook Rant as Grounds for Termination

    Client Alerts
  • April 10, 2015

For decades, the National Labor Relations Board has recognized boundaries on employees’ rights to engage in activity protected under federal labor laws. While employees have been granted leeway to engage in heated or moderately uncivil interactions with management, these rights ended where the employee’s behavior involved threats of violence or excessively aggressive personal attacks. Last month, the NLRB appears to have moved the goalposts on the level of offensive behavior it finds excusable, determining that an employee’s profane Facebook rant did not provide his employer with grounds to terminate his employment.

In Pier Sixty, LLC, shortly before a union election, an employee upset with his supervisor’s work instructions during a catering event, posted a message on Facebook stating that “Bob is such a NASTY M----- 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‼‼‼” The employee subsequently deleted the message, but the company fired him based on his rhetoric and threats.

In a 2-1 decision, the NLRB excused this conduct, stating that it fell within the employee’s rights under the NLRA. The Board characterized the Facebook comment as impulsive, and noted that it did not interrupt work in any way. The majority did not view the message as a threat against the manager’s family, but only as an intensification of the criticism. The Board also noted that employees and supervisors regularly used profanity in this workplace, making the context of the employee’s comments less unusual.

The dissenting Board member concluded that this was a vicious personal attack on the supervisor and his family, and therefore lost protection under the NLRA. Based on this decision, it is difficult to come up with a scenario where verbal attacks by an employee against a supervisor and his family would not be protected conduct in the context of a dispute over working conditions. While employers can be sanctioned for threatening employees in such circumstances, the NLRB appears to have removed the requirement that employees behave in a reasonably civil manner.