F-Word Facebook Firing Flipped By Federal Court

Author:Mr Richard Meneghello
Profession:Fisher Phillips LLP

In a ruling that could leave employers fuming and possibly cursing, a federal appellate court ruled that an employee who used a public Facebook page to curse out not just his boss, but also his boss's mother and entire family, should not have been fired from his job. Instead, the 2nd Circuit Court of Appeals decided late last week that the expletive-filled rant was protected by federal law because it was considered protected concerted activity (NLRB v. Pier Sixty, LLC).

The good news is that the April 21, 2017 decision does not give license for all employees to use expletives against management without any fear of repercussion; this ruling fell in favor of the worker because of the specific circumstances surrounding his social media swearing. But the bad news is that this case is a stark reminder that employers need to exercise caution when disciplining those who complain online about workplace conditions, even if they use four-letter words to do so.

You Won't #$@&%*! Believe What The Employee Said On Facebook

Pier Sixty operates a catering company in New York City. In late 2011, the company faced a union organizing drive that was, by all accounts, quite tense. The company managers even made threats to employees that they could be penalized or discharged for union activities, which management later acknowledged violated the National Labor Relations Act (NLRA). Some employees also felt that management engaged in a pattern of disrespectful behavior towards them.

One such employee, Hernan Perez, was upset at his supervisor, Bob McSweeney, for talking to him in a "harsh tone." Perez alleged that, just two days before the election, McSweeney directed him to "stop chitchatting" and "move, move" during a catering event in a way that seemed demeaning. Forty-five minutes later, during an authorized break from work, Perez used his smartphone to post the following message about McSweeney to his Facebook page:

Bob is such a NASTY MOTHERF___ER don't know how to talk to people!!!!!! F__k his mother and his entire f__king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!

The edits to make this language somewhat family friendly were made by this author, whereas Perez's post was not censored in any way. Perez's Facebook friends included 10 coworkers, and his page was publically accessible. The company was made aware of the offensive post and terminated Perez's employment. The Pier Sixty employees voted in favor of unionization, and Perez eventually...

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