In 2011, catering company Pier Sixty fired an employee after discovering he had written a publicly accessible, vulgar Facebook post about his boss. The employee wrote the pro-union post following an exchange where he felt his boss had treated him unfairly, and only a few days before a unionization vote.
The terminated employee filed a charge with the NLRB, citing “retaliation for engaging in protected concerted activities.” The Administrative Law Judge (ALJ) ruled in his favor in 2013, and a National Labor Relations Board (NLRB) three-member panel agreed in 2015 after Pier Sixty filed exceptions. The Second Circuit Court affirmed the NLRB’s decision on April 21, 2017.
Although the court found the post “vulgar and inappropriate,” it determined three points protected the employee: One, the subject matter concerned workplace concerns; two, Pier Sixty tolerated vulgarity in its employees prior to this incident; and three, the online nature of communication was among coworkers, but not in the immediate presence of coworkers.
Read more about the Pier Sixty case here.
