Don’t do that
Johnny Paycheck ‘s 1977 hit, “Take This Job and Shove It” encapsulated the thought of many a worker: the ability to tell one’s boss, in direct terms exactly what was thought of him, and what he could do with his job. That thought, however, typically isn’t a reality.
Tell your boss to shove it, and you’re typically the one doing the shoving. Of all of your things. Into a little box. That you and the security guard carry downstairs on your way off of the property.
Hypothetically…
So what happens when you publicly curse your boss on social media, using rather profane language in describing them and their shortcomings as a leader? That’s automatic termination, right?
Not so fast.
In a recent case before the National Labor Relations Board, board members voted 2-1 to overturn the firing of Hernan Perez, who posted to his Facebook account that his boss “…is such a NASTY MOTHER F-ER don’t know how to talk to people!!!!!! F-k his mother and his entire f-ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
Well, that certainly seems clear enough, and would typically warrant termination.
So what’s the difference here?
The rub
Mr. Perez was an employee of Pier Sixty in New York City and had been for 13 years. In 2011, the service employees of the company began a drive to organize as a union, a drive that company management was actively opposed to.
Two days prior to the vote, Perez’s boss mildly reprimanded him, albeit loudly in front of others, and Mr. Perez vented his frustrations to the world at large.
A month and a half later, after the union had formed, the company fired Perez after learning about the Facebook posting, stating that the comment was a violation of the company’s anti-harassment policy.
Both the NLRB and the United States Court of Appeals for the Second Circuit, to whom Pier Sixty had appealed after the 2-1 NLRB decision, found that Perez’s speech, although vulgar, was protected under the National Labor Relations Act as a part of union organizing activity.
“Even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the ‘subject matter’ of the message included workplace concerns – management’s allegedly disrespectful treatment of employees, and the upcoming union election,” Judge José Cabranes wrote, crafting an opinion for the triumvirate of judges.
Pier Sixty had done themselves no favors.
In attempting to curb support for the proposed union, they had created a ban on talking between employees. When Perez was told to be quiet by his boss, it wasn’t in an effort to maintain workplace decorum as much as it was to chill the organization of the union.
Additionally, the company had been incredibly lax about the tolerance of profanity in the workplace, with obscenities common among both frontline staff and company management alike, including the terms alluded to in Perez’s posting.
No employee had ever been fired for use of profanity at Pier Sixty, and averaged less than one warning for profanity per year to employees for the six years prior to Perez’s firing.
“Under the circumstances presented here, it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity,” said the judges in their ruling.
So, we can’t fire employees for cursing out their bosses now?
The answer is, as it is with so many things in life, a qualified maybe.
How to handle it
Although right to work states do not have to worry about union organization with the frequency that other states do, it is incumbent upon employers to know the law and how to address employees’ rights to organization should talk of a union begin. Ensure that your human resources department is trained in the tenets of the National Labor Relations Act, with at least annual reviews on changes in case law that apply to your field, and make certain that your legal counsel gives timely advice should talk of a union begin (or gives you a referral to labor counsel if it’s outside of their field).
Secondly, if you have a policy on appropriate workplace conduct, follow it.
A rule seldom or only selectively enforced is a nightmare waiting to happen at termination time.
Finally, if your workplace is profanity tolerant, you’ll have a harder time training your employees where the magical line is between okay and fired, so consider making your workplace standards of conduct consistent with professionalism.
Firing well
As with any termination, it should never be a surprise to the employee when it happens, whether it’s for lackluster performance over time or the one very big bad thing that they did. But you’ve got to be sure that you’ve protected yourself by ensuring that you’re really firing the employee for what you say you are, rather than using it as a pretense for other things altogether.
