Second Circuit Rules On Bounds Of Protected Concerted Activity

In a case at the edges of protected employee conduct during a union organizing drive, the Second Circuit Court of Appeals last week found that an employee's expletive-laden Facebook post cursing out his boss—and his boss's mother, too—was within the "outer bounds" of "protected concerted activity" under the National Labor Relations Act (NLRA). In addition to making moms everywhere upset so close to Mother's Day, the court's decision highlighted the wide latitude given to employee speech, especially when in the heated midst of a unionization campaign.

In the case, National Labor Relations Board v. Pier Sixty LLC, No. 15-1841 (April 21, 2017), a server employed by a catering company became upset at how his manager, Bob, spoke to him during a catered dinner event. The dinner event occurred during a tense union campaign, just two days before the scheduled vote. The server, during one of his breaks at the dinner, used his iPhone to vent about Bob on his Facebook page: