Court of Appeal Backs NLRB Decision Finding that Profanity Can Be Protected Speech
The U.S. Court of Appeal for the Second Circuit recently upheld a National Labor Relations Board (“NLRB”) Decision that found that profanity can be protected speech.
In NLRB v. Pier Sixty, LLC, a catering worker was upset at his supervisor for having reprimanded him and his coworkers for chitchatting with guests at an event. The worker stepped out of the event and posted the following message on his Facebook page:
“Bob is such a NASTY MOTHER FUCKER don't know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
The company then terminated the worker for using profanity.
The Second Circuit upheld the NLRB’s decision that found that the company unlawfully terminated the worker for his protected activity of voicing his support for the Union in his Facebook post.
While the worker’s Facebook post reached the “outer bounds” of protected speech in the workplace, the Second Circuit and NLRB found the employee’s firing unlawful because the company tolerated profanity in the past without disciplining workers and his Facebook post did not disrupt the company’s operations. It is also critical that the worker stated “Vote YES for the UNION” because that made the speech protected concerted and/or Union activity.
This decision is important because it upholds important legal precedents under the Obama Board that extended protected rights to employees. However, the Trump Administration might push back much of this precedent.
We will continue to update you on protected rights as the law evolves. For more information, contact your labor law counsel.