You have likely noticed that business interactions and the way people communicate professionally have declined in formality over recent years. The “Friday Casual” day has become the casual week. Formal letters have turned into short emails. Even slang has devolved to emoticons and language unheard of in the workplace a decade ago. Navigating through these trends in the working environment is not always easy. This is especially true given California’s unique employment laws.
Two categories of communication stand out in California as traps for the unwary employer: profanity and politics. This post covers the first of those topics—profanity at work. For a more detailed look at issues surrounding politics in the workplace, please stay tuned for a future blog post.
Profanity in the Workplace:
Profanity is not rare in the work environment but employers do not always know how to respond. For example,
Can you terminate and or discipline an employee who directs the F-word to his supervisor?
What if it is the supervisor who is using profanity? Can the employer ignore it?
The answer is: “It depends.” Traditionally, one would expect that cussing out your boss would constitute good cause for termination. But the context of the offensive language is key.
Any workplace is populated by a range of employees. It’s only natural that a supervisor might wish to give benefit of the doubt to a good employee who makes a linguistic slip-up, but may terminate a less good employee whose unsavory comment is the “last straw.” However, any time you terminate someone for use of foul language, you should consider the history and the available evidence. Was one employee treated differently than another for the same conduct? Discipline in one instance and not the other may put the company at risk for claims that the off-color language was a pretext for discrimination under the FEHA. Further, an employee could be found to have a right to express himself or herself in a heated manner, depending on the context.
On the other hand, a supervisor’s use of profanity in the workplace could be found to create a hostile work environment, depending on the frequency and—you guessed it—context. For this reason, all employee complaints about profanity must be taken seriously.
And, bring on the California Peculiarities! In California, profanity should also now be considered in light of new legislative standards on “abusive conduct” under AB 2053, which will become effective January 1, 2015. That law [see our Legislative Update post here] will require employers operating in California who provide anti-harassment training to supervisors every two years (under Gov’t Code § 12950.1) to include “prevention of abusive conduct” as a component of that training. While the law does not create any new cause of action under the FEHA, or mandate that employers adopt an anti-bullying policy, it does define “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” It is a fair guess that profanity may fall under that definition.
Also, in what seems to be a trend in this area, the National Labor Relations Board has come out fairly strongly against employers in the union environment, as well: an employee who called his boss a “f++++ mother f*****” and an “A**hole” was found entitled to reinstatement and back pay because the Board determined his words were a protected complaint about working conditions. The Board has also found broad civility and code of conduct policies prohibiting vulgar language unenforceable and illegal on the ground they may chill protected speech. The struggle for employers in union environments is that virtually all swearing outbursts at work can be seen as either directly or indirectly related to “terms and conditions of employment.”
Workplace Solutions: If you’re wondering what to do with your foul-mouthed employees, consider the above government moves toward legislating civility in the workplace, and contact your Seyfarth attorney to give you advice for these unique situations. In addition, Seyfarth Shaw at Work has put together some great training materials on the new law about “abusive conduct” training that should help employers stay in compliance. You can contact us for more information on those trainings here. Last but not least, keep your eye out for our California Legislative Update webinar, where members of the California Workplace Solutions group will dig deep on the new laws and how they’re affecting California employers.
Edited by Coby Turner