Offensive Facebook Posts May Be Protected Speech
Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired or posting highly offensive comments about his supervisor. Although this case (National Labor Relations Board v. Pier Sixty LLC) involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a break room conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee's employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.
In Pier Sixty, the employee posted profane comments on Facebook disparaging his supervisor and his supervisor's family, criticizing his supervisor's communication skills, and encouraging a vote for the union.
Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying
on at-will status.