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.
The case
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.
Decision
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.
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