Second Circuit Upholds NLRB Order Finding Derogatory Facebook Post Protected Under The National Labor Relations Act

Executive Summary: On April 21, 2017, the United States Court of Appeals for the Second Circuit in National Labor Relations Board v. Pier Sixty, LLC, enforced an order of the National Labor Relations Board (NLRB) finding that an employee did not lose the protections of the National Labor Relations Act (Act) by posting a derogatory comment about his supervisor on Facebook while encouraging his co-workers to vote for the union in an upcoming election and in concluding that the employer violated the Act by discharging the employee. The Court of Appeals stated that the employer "failed to meet its burden of showing that Perez's [the employee's] behavior was so egregious as to lose the protection of the NLRA under the Board's 'totality-of-the-circumstances' test."