We all have our less-than-classy habits, and I am certainly no exception. Some people bite their nails, some leave their socks laying around on the living room floor. Me? Well, I may or may not have a rather developed vocabulary when it comes to bad words. I adore them all: the four-letter variety, when used as a present participle or a gerund, both the noun and adjective forms. From a young age, my dad tried his darnedest to correct my choice of words (hi, Dad!), but to no avail. I really do love a good curse word.
Most HR professionals can recall an instance over the course of their careers when an employee with my fervor for foul language was on the receiving end of a discussion with HR about using appropriate language in the workplace. Those same HR professionals may be surprised to learn that, depending on the context, the use of bad words in the workplace might be off-limits when it comes to issuing discipline. In fact, the National Labor Relations Board has consistently recognized that, when engaging in protected and concerted activity, employees are granted a bit of wiggle room with respect to the appropriateness of the employee’s actions and (to the delight of any employment lawyer who gets to read the decisions in all their uncensored glory) the employee’s choice of language. Which means that, in the context of protected and concerted activity, employees are allowed a reasonable level of risqué language without losing the protection of the NLRA.
Recently, I have seen a bit of an uptick in cases from the NLRB where the Board looked not only at the context of the comments that resulted in discipline, but also at the use of profanity in the larger office environment. Specifically, the NLRB looked at how much the employer tolerated cursing in the workplace in the normal course of a workday.
For example, earlier this month the NLRB found in favor of an employee who had been fired by his employer for making profanity-laced comments about a client in a restroom shared by employees and clients of the employer. The employee filed an Unfair Labor Practice charge, claiming that the comments were protected and concerted activity. The employer argued that, even if the NLRB determined that the employee’s comments were protected and concerted (it did), that the employee would have been fired anyway due to the employee’s repetitive use of The F Word. Unfortunately for the employer, it was an “undisputed fact that profanity was used regularly and tolerated in and outside of the workplace.” Since the employer allowed bad language in the workplace normally, the employer could not pin the employee’s discharge on conduct it otherwise tolerated.
For those of you curious about how far the NLRB will stretch this protection, I am reminded of a case from about two years ago where, due in part to the employer’s tolerance of foul language in the workplace, the Board deemed the following Facebook post (*which I edited for this blog in the style of autocorrect) as protected activity:
Bob is such a NASTY MOTHER DUCKER don’t know how to talk to people!!!!!!! Duck his mother and his entire ducking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.
I am not exactly sure what the employee in that case had against Bob’s mother and entire, um, ducking family, but I am sure that cases like the two above demonstrate how far the NLRB will stretch the protection of the law.
In the course of developing or mindfully maintaining a workplace culture, employers should evaluate the organization’s level of tolerance for profanity. While studies have shown that an employee with a dirty mouth is likely to have a more robust vocabulary and greater ability to endure pain, allowing profanity to permeate the workplace also increases the risk of creating a hostile work environment, and as demonstrated above, limits the employer’s ability to respond with discipline when the cursing gets a little out of control. So don’t just ignore an increase in office onscenities, or else the organization could end up, well, ducked.