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Legal Briefing

Employee Wrongfully Terminated for Online Rant

While an employee’s social media post might be offensive to a manager or the employer that does not mean it is unprotected.

Hernan Perez was a server for Pier Sixty LLC, a catering company, for 13 years. During a tense union organizing drive and following what Perez viewed as disrespectful treatment, Perez posted a message on his personal Facebook page calling his supervisor a “NASTY MOTHER F—ER” and “a LOSER,” saying “f— his mother and his entire f—ing family,” and then concluding by urging co-workers to vote for unionization. Perez was terminated when management discovered the post.

profanity

The 2nd Circuit U.S. Court of Appeals affirmed the NLRB’s decision that even though Perez’s message was dominated by vulgar attacks, the “subject matter” of the message included concerns about the workplace and treatment of employees. Since “Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to ‘Vote YES for the UNION,’ the board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”

The court cautioned that Perez’s outburst “sits at the outer bounds of protected, union-related comments.” NLRB v. Pier Sixty LLC, Case Nos. 15-1841 and 15-1962 (2nd Cir. 2017)

Impact: While an employee’s social media post might be offensive to a manager or the employer that does not mean it is unprotected.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email editors@workforce.com.