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Second Circuit Reaffirms Social Media Protection

May 25, 2017

Drafting proper social media policies is extremely important but also a difficult task for employers who must comply with the National Labor Relations Act (“NLRA”). Applying the concept of “protected concerted activity” to modern social media activity presents a challenge to the National Labor Relations Board (“NLRB”) and for employers. The Second Circuit recently held in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017) (“Pier Sixty”) that an employer who terminated an employee for criticizing a supervisor via Facebook violated the NLRA.

History

According to the NLRB, the NLRA “protects the rights of employees to act together to address conditions at work, with or without a union.” Such protection is extended, depending on the context, to work-related social media posts, such as those on Facebook and Twitter. In 2010, the NLRB began obtaining charges about employer social media policies and complaints of discipline for Facebook posts. This prompted the NLRB to conduct investigations which gave the agency reasonable cause to believe that some of the policies and actions of employers violated federal labor law. In 2012, the NLRB found that firing a salesman for photographs and comments posted on his Facebook page was not in violation of the NLRA. The NLRB agreed with the judge’s decision that the photo posted was not concerted activity and therefore it was unprotected by the NLRA.

Pier Sixty

In Pier Sixty, a dissatisfied employee, two days before a union election, posted a message to his Facebook page using obscenities directed at his supervisor, his family, and referred to the supervisor as “a loser.” The post was visible to the public as well as the employee’s Facebook friends which included co-workers. Although the employee took the post down three days later, it was already viewed by the employer and the employee was terminated for allegedly violating the company’s harassment policy.

The court found that based on the “totality of the circumstances” the termination was unlawful. The court stated that despite the employee’s vulgarity and “ad hominin attacks on his supervisor,” the substance of his post involved workplace concerns. The court reasoned that the NLRB could have reasonably concluded that the post “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.” In siding with the employee, the Second Circuit conceded that if an employee acts in an abusive manner while engaged in presumably protected activity, he or she will lose NLRA protection.

The court found that the record contained evidence of past instances where the employer tolerated profane language from other employees and had never terminated an employee for using such language in the past. The court also noted that Facebook in considered an “essential communication medium” for union organization of activities and that he employee’s conduct did not occur in front of customers and it did not disrupt the catering event. As a result, the court held that the Facebook post, although inappropriate, was “not so egregious as to exceed the NLRA’s protection.”

Social Media Protection

Employers need to take not that the Second Circuit’s holding reaffirms the expansive view the NLRB has been taking when it comes to social media protections for employees.

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