A recent 2nd Circuit court ruling will affect how employers have to deal with employees who make profane comments about their place of employment or associated workers outside of work time. The April 21st ruling noted that an employee’s Facebook rant, in which the employee used profanity to describe a supervisor, was protected speech because the employee was in the middle of union talks and then used the post’s subject matter to promote the union. The employee had been fired for the rant, but the court’s decision means that now, firing for a similar situation will not be the go-to option for employers.
Background
The case concerned a Facebook rant posted in 2011 by a worker at a New York venue called Pier Sixty. The post used extremely profane language directed toward a supervisor and his family. The employee who made the post was fired two weeks later, shortly before elections that would decide whether the workers would unionize. The employee appealed to the National Labor Relations Board, which found the rant was allowed. The employer appealed to the 2nd Circuit court, but the court upheld the original legal decision.
The court noted a number of interesting findings. The rant was at least partly related to union activity; it wasn’t simply a case of the employee saying a supervisor sucked. The court also noted the supervisors regularly used similar language when talking directly to employees, and no employees had ever been disciplined for using profane language before this firing. So not only was the language something considered acceptable at the worksite, but the post could also be considered a protected employment activity.
Effects
Employers need to be aware that they can now be subject to some rather awful language online if the language is part of a work-related issue. It should be noted that the court thought the language in the Pier Sixty case was almost unacceptable; it truly was a stream of profanity that nearly stepped over the line. Again, though, this type of language appeared to be used freely at the worksite by both employees and their supervisors, thus providing the employee with a reason to think it would be OK to use it in the Facebook post.
Companies that want to protect themselves against such language may want to clamp down on the language used at work — not to the extent that it prevents employees from speaking, but if there is an anti-profanity rule, it should be reasonably enforced to set a precedent (key word: reasonably).
Employer-employee relations can often become tense, especially if the employees are trying to unionize. However, employers need to be aware of how tricky it can be to simply fire someone for profanity; it’s not just the profanity that counts.
