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Can I Be Fired For Swearing At Work?

Published By | Jan 12, 2022 | Disability Discrimination, Employment Law, Wrongful Termination |

Best Ohio Employment Discrimination Attorney Answer: Can my employer fire me for dropping an F-bomb? Can my employer fire me for an emotional outburst at a union meeting? What can I say at work about unions? Do I have any recourse if my employer fires me for saying something they disagree with? What words can my employer fire me for saying?

Jobs can be really stressful; trust me, I get it. Sometimes our emotions can get the best of us and we say things we don’t necessarily mean to. Whether it’s an accident or event that makes us lose our temper or dealing with a particularly rude customer, working can be extremely frustrating sometimes. I think back to screaming into a pillow as an angsty teenager to deal with how unfair life was and sometimes I wish we could all carry a screaming pillow around as we do our daily job duties. For whatever reason, saying the wrong thing or having an emotional outburst can easily cost many people their jobs and we here at the Spitz Law Firm want to help prevent that from happening. So, what standards are there for determining what an employee can or cannot say without being terminated?

Our employment law attorneys discussed how emotional outbursts in general relate to the Americans With Disabilities Act before on this blog. (See Law: Does The ADA Protect Emotional Outbursts?). You should read that excellent blog, but we’re not going to be looking at the ADA today. Instead, we’re going to look at how the National Labor Relations Board lays out when an employee’s language can be considered worthy of termination when it relates to unions or unionization.

The reason we’re discussing this topic as it relates to unions is because, to be honest, there are no protections for emotional outbursts in general. Unless you can relate it to the ADA, relate it to otherwise protected activities, such as unionization or complaints, or if there is a contract limiting your termination between you and your employer, your employment is considered at-will. This means that you can be terminated for any reason, so long as that reason isn’t in violation of other laws, such as Ohio Revised Code § 4112.02 or Title VII.

Before we get too deep into the weeds, what protections do individuals have as it relates to unions? The National Labor Relations Act (“NLRA”) was enacted in 1935 to provide federal protections to employees to create, join, and participate with unions. The most important part of the Act for us is Section 7, which states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. 29 U.S.C. §§ 157.

Basically, an employer cannot fire you for unionizing or participating in union-related activities. The NLRA also created the National Labor Relations Board (“NLRB”) to hear disputes between employees and employers related to interpretation of the NLRA. That is who decided the case we’ll be looking at today, between General Motors LLC and Charles Robinson. 14-CA-197985.

So what happened in this case? Charles Robinson worked as the union committeeperson for an automotive plant for General Motors (“GM”) in Kansas City, Kansas. Needless to say, Charles said some not-so-nice things on multiple occasions to various supervisors of GM, leading GM to suspend him for over a month. These outbursts involved profanity, vague threats, and playing loud offensive music. On September 18, 2018, an Administrative Law Judge looked at the case and found that Charles’s profanity-laced argument that got him suspended for a few days was protected but the other two incidents – including the music – were outside the protections of the NLRA. Eventually the case was appealed to the NLRB, who took the case.

The question that the NLRB sought out to answer was “[u]nder what circumstances should profane language or sexually or racially offensive speech lose the protections of the [NLRA]?” 14-CA-197985 at 2. In order to do that, the NLRB first looked at the legitimacy of the four-factor standard they had been using up to that point. Under that standard, in order to determine whether an employee loses protections under the NLRA for an emotional outburst, the NLRB would consider:

  1. The place of the discussion;
  2. The subject matter of the discussion;
  3. The nature of the employee’s outburst; and,
  4. Whether the outburst was, in any way, provoke by an employer’s unfair labor practice. Id at 4.

The NLRB then looked how they used that analysis in different cases. The NLRB argued that the standard always leaned in favor of the employee and would lead to an appellate court overturning their decision. They eventually concluded that the factors failed to be “an effective legal standard” and abandoned it. Id at 6. Finally, the NLRB adopted a new standard, the Wright Line standard. In this standard, the burden shifted heavily from favoring the employee to favoring the employer. Per the Board, in order to be protected under the NLRA, the employee must show:

  1. The employee was engaged in a protected activity under 29 U.S.C. §§ 157;
  2. The employer know of that activity; and,
  3. The employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. Id at 10.

This is clearly a much stricter standard for an employee than the previous standard. The NLRB justified this change by explaining that using this standard would lead to “more reliable, less arbitrary, and more equitable treatment of abusive conduct.” Id. The NLRB then concluded that:

The Board will properly find an unfair labor practice for an employer’s discipline following abusive conduct committed in the court of Section 7 activity when the [employee] shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity. Id.

For Charles Robinson, the NLRB concluded that the Administrative Judge had applied the old standard and must therefore rehear the case under this new standard.

What does this decision mean for employees? Well, at least under federal law, it has become more difficult for an employee to show that an emotional outburst or offensive comment is protected under the NLRA. The NLRB abandoned its previous standard in favor of a more employer-friendly standard that shifted the burden from the employer to the employee.

How do you show that an emotional outburst related to unionizing or union-related activity is protected under the NLRA? Well, firstly, if you believe you’ve been terminated because of union-related activity, you should call the right attorney immediately. Especially now that the standard has changed, you should talk to one of our experienced employment lawyers before making any decisions related to your case. Assuming you do that, what would your case require? Under this new standard, you’d have to first show that you were participating in an activity related to NLRA Section 7. This could be participating in a union, discussing union activities, or discussing possible unionization. Secondly, you’d have to show that your employer knew that you were participating in a Section 7 activity. Thirdly, and most difficult, you would have to show that there was a causal connection between the activity itself and your discipline. Essentially, you would have to show that the employer would not have disciplined you for your outburst if it had not related to the Section 7 activity.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Toledo and Cincinnati to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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