Government overturns firing of employees who cursed at work

National Labor Relations Board deems certain profane outbursts as protected

ORLANDO, Fla. – A government board has handed down several rulings overturning the firings of employees who engaged in profane outbursts -- including in front of customers.

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"It begs one to ask the question, 'Has common sense left the building?'" said Steve Ball, a labor attorney with Holland and Knight in Orlando.

The National Labor Relations Board has recently taken the position that the National Labor Relations Act, a longstanding law protecting discussion of working conditions, can extend to profane language.

"Discussing one's terms and conditions of employment has been considered by the Board as protected activity," Ball said. "The twist is how the employee presents it (with vulgar, crass statements), which the Board is now somehow linking with the protected activity, and painting the term protected activity with a broad brush."

The most famous case involved a California Hooters waitress. She was competing in a workplace bikini contest -- judged by the boyfriend and best friend of one of the contestants.

"Well, needless to say, the girl that had the boyfriend and best girlfriend won the contest, and one of the waitresses started calling her vulgar names in front of customers and coworkers, and this continued out into the parking lot," Ball said.

The waitress, who denied wrongdoing, was fired. But when the NLRB got the case, it ruled Hooters had to rehire her with back pay.

"In their minds, it was protected activity because she was complaining about what she believed to be the allegedly rigged contest," Ball said.

The National Labor Relations Act applies to both union and non-union businesses. Ball believes the way in which it's being applied by the NLRB could impact how Orlando businesses form their policies and procedures -- and even fire employees.

"I think the risk is going to become, in the next couple years, a lot greater than it has been in the past," Ball said.

Decisions of the NLRB can be appealed to federal appellate court. And as more employers choose to appeal the NLRB's decisions, it's possible the trend could be reversed by the higher courts.

Members of the NLRB are appointed by the president of the United States to a five-year term, with Senate consent. The term of one member expires each year.