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Angry person behind computerThe Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage in what in the past may have been considered insubordination.

The Facts.

The defendant, Pier Sixty, is a catering company. Around the time of the incident, its employees were engaged in a union organizing campaign. Mr. Hernan Perez, a server, felt that his supervisor, Robert McSweeney, had spoken to him and some other servers fairly harshly about their work. On his next break, Mr. Perez used his phone to post a charming message on his own Facebook page. The message called his supervisor a “nasty mother f*****” and went on to say “F*** his mother and his entire f***ing family” (although Mr. Perez substituted the real letters in his words instead of asterisks—this is a family-friendly blog). He ended the message with “Vote YES for the UNION!!!!!!” The post was publicly accessible, and Pier Sixty learned about it. Subsequently, Mr. Perez was fired.

Mr. Perez and the union filed unfair labor practice charges with the NLRB claiming he had been terminated for protected concerted activities. An administrative law judge found in favor of Mr. Perez, and a panel of the NLRB affirmed that decision. Pier Sixty appealed to the Second Circuit.

What the Second Circuit Said.

Pier Sixty initially argued that the NLRB decision was not valid due to the recent finding that the NLRB’s acting general counsel, Lafe Solomon, served in violation of federal law (see our related blog post). The Second Circuit dismissed this argument by finding that the defendant failed to raise that defense at the NLRB panel stage and therefore waived that argument.

The court then turned to the substance of Mr. Perez’s post and whether it should be protected. The opinion recognized that there are situations where an employee engaged in potentially protected activity under the NLRA may act in such an abusive manner that he or she loses the protection of the act. The court held that the proper standard to be used in evaluating the comments should be the “totality of the circumstances” test found in recent social media cases.

Under that standard, the court first stated that although the message was “dominated by vulgar attacks” on the supervisor and his family, the subject matter of the message included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before” the union election. Second, the court found that the employer consistently tolerated profanity among its workers. Specifically, the employer had not previously disciplined employees for using the “f word” and other expletives and racial slurs. There was no evidence that Pier Sixty had ever discharged an employee solely for the use of offensive language. The court found that it was reasonable for the administrative judge to decide that Mr. Perez’s comments “were not a slur against [the supervisor’s] family, but rather, an epithet directed to [the supervisor] himself.” The court also found it significant that although no server had ever been fired for profanity before, Mr. Perez was fired only two days before the union election.

Finally, the court held that because the comments were on Facebook, it was not an outburst in the immediate presence of customers and did not disrupt any catering event. The court noted that social media is “a key medium of communication among coworkers and a tool for organization in the modern era.” The opinion also found significant that Mr. Perez mistakenly thought his Facebook page was private and took down the post three days later when he learned the public could see it. In conclusion, the Second Circuit ruled that the NLRB was not in error in finding that Mr. Perez’s post, although “vulgar and inappropriate,” was not so egregious as to not be protected under the NLRA.

Does this open the floodgates for cussing out supervisors?

Admittedly, the facts of this case would have most of the public feeling that Mr. Perez’s profanity-filled post should have gotten him fired. However, this opinion seems to show that the courts are becoming more tolerant of what, in the past, would have been considered offensive language. Part of the problem here was that the employer did not enforce any rules against profanity in its own workplace. If you don’t want your employees cussing, be sure to discipline them for doing so—especially if it is in front of customers. Another lesson from this case appears to be that the NLRB and some courts are taking the stance that social media posts are the equivalent of a worker standing on a box holding up a sign saying “union”—and that those comments, even if vulgar and insubordinate, will be allowed some protection. It looks like we may be in for some fairly interesting cases in the future—ones that may have to be edited for tender ears.

Shock the Monkey: Police Officer Photo Post on Social Media Costs Him His JobWhen is a “joke” so not funny that you lose your job? The Mississippi Court of Appeals gave some direction on that question, affirming the City of Meridian’s termination of a police officer for an inappropriate (arguably racist) Facebook posting. While on duty (but on a break), Officer Meador posted to his public Facebook page a photo of two chimpanzees laughing, adding the caption: “Earlier today, the mayor and the chief of police had a meeting” and a comment: “Something will probably be said, but I couldn’t resist.” He took down the photo soon afterwards. Given that both the mayor and chief of police of Meridian are African-American, some saw this as racially inappropriate. When confronted, Officer Meador stated that he meant it to be a joke, but recognized that people would know he was talking about Meridian’s mayor and police chief. After an investigation, he was terminated.

Although the opinion addresses Mississippi’s standard of review of decisions made in the civil service employment context and a technical issue with the termination notice, that is not what I am blogging about today. I think the most interesting aspect of the decision is the discussion of Officer Meador’s defense that the termination violated his First Amendment rights. The Court noted that the First Amendment protects a public employee’s right, in certain circumstances, to speak as a “citizen addressing matters of public concern.” The Meridian Civil Service Commission held that there was no public concern interest in the posting of the photo of the monkeys and therefore no protection. The Court of Appeals agreed and analogized the case to an Eighth Circuit decision rejecting a police officer’s argument that his First Amendment right to free speech was violated when he was suspended for wearing blackface to a Halloween party. Meador also argued that he had no racial intent in posting the photo, which the Court rejected, citing numerous cases that connect the use of monkey words and imagery as “without a doubt, motivated by racial animus.” The Court ultimately held that regardless of Meador’s intent, his posting was “inherently racially insensitive and/or demonstrated insubordination toward his superiors.” The posting was a violation of the Meridian Police Department’s Code of Conduct prohibiting expressions of racial prejudice and public criticism or ridicule of the Police Department. As such, the Court upheld the termination.

Hopefully, employee postings as problematic as this are rare. However, this decision, coupled with past NLRB actions, shows that managing social media can be a real headache for employers. Be sure to check your social media and computer use policies and train your employees on their terms. Also, many of these problems can be cut off at the pass by encouraging employees to be positive about their job and providing them non-social media outlets for their complaints about working conditions.

All Tennessee employers and their agents must now comply with the “Employee Online Privacy Act of 2014,” a new law that prohibits employers from asking their employees for their usernames and passwords to social media sites, among other things. The law went into effect on January 1, 2015. Although it prohibits employers from taking certain actions, the Act also lists permissible actions, which may help employers navigate the numerous scenarios involving employees’ personal internet activity.

DON’TS: Tennessee employers can no longer:

  • Request or require an employee or applicant to disclose a password to their “personal Internet account,” such as Facebook, Twitter, or a personal e-mail account.
  • Compel an employee/applicant to add the employer to the contact list associated with the Internet account. For example, you likely cannot require an employee or applicant to “friend” you on Facebook.
  • Force an employee/applicant to access a personal Internet account in the employer’s presence. In other words, you cannot require an employee to access his or her “personal Internet account” while you watch.

If an employer improperly asks an employee to do one of these things, and the employee refuses, the employer is prohibited from taking an adverse employment action or otherwise penalizing the employee.

DOS: So what can an employer do? Under the Act, an employer can:

  • Request or require employees to provide a username and password to access an “electronic communications device” supplied by the employer or paid for (wholly or in part) by the employer.
  • Request or require employees to provide a username and password to access an account or service the employee obtained because of the employment relationship or that the employee uses for the employer’s business purposes. A possible example could be if an employer pays for an Internet database, such a LexisNexis, for its employees and the employer requests the employee’s username and password for that account.
  • Discipline or discharge an employee for transferring the employer’s proprietary, confidential, or financial information to his or her personal Internet account without the employer’s authorization.
  • Conduct an investigation or require an employee to cooperate in an investigation when the employer has “specific information” about an unauthorized transfer of the employer’s proprietary or confidential information.
  • Restrict or block an employee’s access to certain web sites while using an electronic communications device supplied by or paid for (wholly or in part) by the employer or while using an employer’s network or resources.
  • Monitor, review, access, or block electronic data stored on an employee’s communications device supplied by or paid for (wholly or in part) by the employer.
  • View, access, or use information about an employee or applicant that is available in the public domain.

The Act does not impose a penalty on employers who violate it. It does, however, create a standard of conduct for employers regarding what is illegal, and therefore could give rise to a whistleblower claim under the Tennessee Public Protection Act if an employee is terminated following an impermissible inquiry.

Tennessee’s implementation of the Employee Online Privacy Act of 2014 adds the state to a growing list of states that have enacted similar legislation prohibiting an employer from requesting an employee’s username and passwords to social media sites. In addition to Tennessee, Louisiana, New Hampshire, Oklahoma, Rhode Island, and Wisconsin enacted similar legislation in 2014.