Pier Sixty, LLC is a catering company in Manhattan, New York. Not too long ago, some of Pier Sixty’s employees were concerned that company management repeatedly treated them disrespectfully and in an undignified manner. As a result, the employees began to express interest in union representation.
On October 25, 2011, Hernan Perez, an employee of Pier Sixty, was working as a server at a fundraising event. During the cocktail and dinner service, Perez felt that he and other employees had been subjected to disrespectful treatment by one of their managers. Perez took a break to calm down, and went outside. During his break, Perez used his iPhone to post the following on Facebook regarding his supervisor (censored for this post):
Bob is such a NASTY MOTHER F____R 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!!!!!!!
Perez’s Facebook friends included a few of his coworkers, and current and former coworkers commented on the post. Perez made his post two days before the union election, and removed it the day after the union election. After an investigation, Pier Sixty terminated Perez’s employment saying that Perez had violated company policy by posting his offensive comments.
Naturally, Perez filed a claim with the National Labor Relations Board (NLRB). And, naturally, on March 31, 2015, the NLRB sided with the employee and determined that Pier Sixty violated Perez’ rights when it fired him.
What’s Up With The NLRB?
This NLRB case of Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez is just another decision in a string of decisions that unreasonably protect employees who, in most settings, would seem to deserve to be fired from employment. For several years now, the NLRB has been the most pro-active government agency to take action regarding social media and workplace issues, and almost all of the time, the NLRB rules in favor of the employee. This is true even when the employee publishes incredibly unprofessional and vulgar posts. Indeed, in a 2013 post (4 Tips To Prepare For The New National Labor Relations Board) I warned employers to brace themselves for more over-reaching rulings from the NLRB.
Cases like this one involving Pier Sixty, however, really put employers in a quandary. Here, the NLRB stated that “[a]lthough we do not condone Perez’ use of obscene and vulgar language in his online statements about his manager, we agree  that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’ conduct did not lose the Act’s protection.” This is so even though the dissent characterized Perez’s Facebook comments as “fraught with insulting and obscene vulgarities.”
The NLRB reached this conclusion by focusing on several factors. One such factor was that it found that Pier Sixty had not disciplined other employees in the past for language similar to that used by Perez, and noted that such remarks were “a daily occurrence in [the] workplace, and did not engender any disciplinary response.” The evidence demonstrated that since 2005 Pier Sixty had “issued only five written warnings to employees who had used obscene language, and there is no evidence that [Pier Sixty] has ever discharged any employee solely for the use of such language.” As a result, according to the NLRB, Perez may not have known that his use of such language would result in his termination.
Additionally, since Perez was allegedly (by stating “Vote YES for the UNION!!!!!!!”) posting in order to help protect the rights of his fellow employees, the NLRB found that his post was an example of protected concerted activity under the National Labor Relations Act.
Finally, the NLRB examined Pier Sixty’s policies. The NLRB noted that Pier Sixty’s policy on “Other Forms of Harassment” did not prohibit vulgar or offense language. And, Pier Sixty did not claim that Perez’ post on Facebook was directed at any protected characteristic listed in the policy.
What Should Employers Do?
Employers must take steps to avoid these situations and being overruled by the NLRB. Here are a few steps to take:
1. Update/create policies. These policies should be as specific as possible, and should not contain a blanket prohibition on employee use of social media, except when the employee is expected to be working. They could prohibit the use of vulgar language and profanity, and should be created/updated along with any anti-harassment and anti-bullying policies. Note, however, even with these tightly worded policies, the NLRB and/or courts may still determine that such policies are in violation of the National Labor Relations Act.
2. Train Employees. Having policies and a Handbook is a great start. However, they only get you so far. Employees must be trained to understand what these policies mean. And, supervisors and managers must learn the same, and how/when to enforce such policies. Furthermore, they must know when to discipline employees and what types of discipline are at their disposal. Alternatively, they need to know enough to know when to refer a situation to the Human Resources department.
3. Be consistent. The NLRB was unimpressed by Pier Sixty’s decision to terminate Perez when Pier Sixty had not terminated the employment of any other employee before for using such language. It is unknown if the NLRB would have ruled differently if Pier Sixty had terminated other employees for offensive/vulgar language, but it likely would have helped Pier Sixty if Perez was the fifth employee, and not the first employee to have been terminated for these reasons.
4. Scrutinize terminations. Before terminating an employee for their posts on social media, employers should be extremely careful to analyze their decisions. On the one hand, if the employee has revealed confidential/trade secret information, then termination may be very clear. On the other hand, if the employee is venting about work conditions, even using profanity, the employer must analyze whether such comments could be considered protected concerted activity.
What Do You Think?
Did the NLRB get this right? Should employers be required to put up with such derogatory comments towards a manager and a manager’s family?
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