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Q. Can I fire an employee for making disparaging comments about the company and its supervisors on social media?
A. According to a recent Second Circuit opinion, if the social media post was made in the context of union organizing activity, then the answer likely is no. The National Labor Relations Act (NLRA) prohibits employers from terminating an employee based on that employee’s union-related activity. If the employee’s protected activity rises to the level of “opprobrious” or abusive conduct, however, it could lose the protection of the NLRA. Nonetheless, the standard for a finding that the employee engaged in “opprobrious” or abusive conduct is quite high.
In NLRB v. Pier Sixty, LLC, an employee posted a Facebook message encouraging other employees to vote for the union and referred to his supervisor as a “loser” and a “motherf*cker.” The employee even went to so far as to disparage the supervisor’s family, posting: “F*** his mother and his entire f***ing family!!!!”