Dive Brief:

• A New York City restaurant worker took to his Facebook account to advocate for a union election, but not before writing obscenities about his employer and the employer’s family, Politico reports. A coworker saw the post and reported it to HR. The restaurant fired the employee for his behavior.
• The situation led to a lawsuit which has since been heard by the U.S. Court of Appeals for the 2nd Circuit. The court's final ruling, handed down Apr. 21, criticized the plaintiff's post for being "vulgar and inappropriate" but nonetheless ruled that the National Labor Relations Act (NLRA) still protected him.
• Though the court said the employee's behavior placed him on the outer fringes of protection under the law, it ruled against the restaurant. The employee satisfied the NLRA’s provisions; he addressed working conditions in the modern-day equivalent of a public forum (Facebook) in which employees discuss workplace issues. Moreover, his Facebook account is outside the public arena.

Dive Insight:

Employers might find the court’s ruling surprising, but the employee's invocation of union advocacy clearly gave merit to the argument for protected speech concerning workplace conditions.

Surely, the post could have been worded *ahem* more tactfully. Even so, the bigger question for employers is whether the employee had exhausted all of his options to fix his issues with the employer before taking to social media (which is nearly always a thorn in the side of employers when it comes to disputes).

For example, did the employer have an easily accessible employee handbook front-and-center, with clear directions for taking up the issue with HR in a positive manner? Did the employer properly consider the employee's outburst, though offensive, as protected speech about work conditions? A knee-jerk firing would not allow any employer the chance to answer these questions sufficiently.

Facebook posts sometimes aren't the most publicly visible complaints an employer can receive, either. DirectTV contractors recently won an NLRA-based lawsuit after airing their complaints about management to a television audience during an interview. That was ruled as protected speech, too.

The main takeaway for employers: Hold off on any reverse action against employees before considering the legal ramifications.