Friday, May 8, 2015
The National Labor Relations Board ruled in favor of an employee fired because of a rant on Facebook against the employer. Perhaps more significantly, the company cited violation of its obscenity policies, which the NLRB disregarded because the policy was found to have been unenforced in past instances. Underscoring the importance to enforce policies regularly and fairly. Not just when it is convenient for management.
By a two-to-one vote, a three-member panel of the National Labor Relations Board upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments, including strong obscenities that were personally critical of a company manager. (Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.)
The company’s employees expressed interest in union representation, based in part because of concerns that management treated them “disrespectfully and in an undignified manner.” Those efforts resulted in a successful organizing campaign, after which the Union was certified as the exclusive collective bargaining representatives. Two days before that election a long-term employee was working as a server at an event. During the cocktail service a company manager allegedly approached and in a loud voice and in front of guests addressed the employee and two other employees, using an unnecessarily harsh tone, and waiving his arms. Upset with the manager’s treatment, the employee took a break and, outside of the banquet facility, posted from his phone a message to his personal Facebook page. The message referred to the manger as a “NASTY M***** F***er” and a “LOSER!!!!,” stated “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!” After being made aware of that posting, the company fired the employee for violation of its obscenity policy.
The panel determined the firing violated the NLRA because the Facebook post was deemed to be protected concerted activity. Although the company argued that the employee had violated company policy regarding obscene language, it was determined that since 2005, the company had issued only five written warnings to employees who had used obscene language, and had discharged no one on that basis. Further, it was found that the employee's use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by the company.”
The NLRB first ruled on “Facebook firings” in October 2012. The NLRB has ruled that postings on social media regarding the way employees are treated or working conditions are protected concerted activities under the National Labor Relations Act. The company’s defense of policy violation in the aforementioned case did not stand up because the policy itself was overlooked.
Employee handbooks and rules are necessary for a safe and favorable workplace. However, when violations of policies are overlooked the workplace can become a dangerous and/or hostile environment. Additionally, employee morale tends to be low because of managerial indifference or inequitable enforcement of violations. When policies are enforced as a “CYA” measure, reviewing entities rarely rule for the company.