This is one instance when an employee can curse the boss–and get away with it

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(This post originally appeared on The Washington Post)

Have any of your employees cursed you out on Facebook recently? Would you fire them?  Of course you would – and I wouldn’t blame you. I also don’t blame Herman Perez’ boss at the venue Pier Sixty who did the same.

Buzzfeed reports that back in 2011, Perez got chewed out by his boss during a period when very tense union negotiations were going on.  Furious with him, Perez took to Facebook and wrote “Bob is such a NASTY MOTHER F—–” and a number of other choice words before concluding “Vote YES for the UNION!!!!!!!”

Now, there are about a billion people a day on Facebook and on that day Perez’s friends, which included 10 co-workers, saw the post. So it was no surprise that word got back to company management and a week later Perez, a 13-year employee at the company, was let go because of his profane comments.

Last Friday, a federal appeals court ruled that he shouldn’t have been fired. Why? When a matter concerning unions is raised, the National Labor Relations Board gets involved. The NLRB argued that Perez’s speech was union related and legally protected.

The courts agreed. Even though Perez’s conduct “sits at the outer-bounds of protected, union-related comments,” a panel of federal judges ruled, he was still wrongly terminated because “Perez’s outburst was not an idiosyncratic reaction to a manager’s request, but part of a tense debate over managerial mistreatment in the period before the representation election.”

Apparently the culture at Pier Sixty has historically tolerated a certain level of profane language amongst its managers and workers. To that end, the court found it “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.” The court also took into consideration that Perez’s comments were on Facebook which is a “a key medium of communication among coworkers and a tool for organization in the modern era.”

Pier Sixty had no comment, profane or otherwise.

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