Employees may be disqualified from unemployment benefits when using profanity.
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Drop An F-Bomb, Forfeit Unemployment?
Employees Discharged For Profanity May Be
Disqualified From Receiving Unemployment Benefits
By Christopher W. Olmsted
Can an employee terminated for using profanity lose entitlement to unemployment benefits? Maybe. California employers know the basics when it comes to EDD unemployment benefit eligibility. If the employee voluntarily quits or engages in willful misconduct, he or she is disqualified. If the employer otherwise terminates the employee (with or without cause), the employee is eligible for benefits. At what point does a foul-mouthed employee cross the line into willful misconduct territory?
Consider this hypothetical: John Smith works in an accounting firm. Sometimes under the pressure of tax filing deadlines he becomes verbally abusive with his supervisor and uses the F-word or other profanities. The company has a policy requiring professional conduct and prohibiting profanity or abusive language. After being warned, Mr. Smith is terminated for continuing to use profanity. He then applies for unemployment benefits, claiming that he was involuntarily terminated. Is Mr. Smith entitled to receive benefits?
Drop Some F-Bombs, Lose Your Benefits
The California unemployment insurance regulations address this question. According to Title 22, Section 1256-36(b), an employee claimant might be disqualified from receiving benefits for profanity. The section states that the employee may be disqualified where he or she:
“Addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer or the employer's representative when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee.”
Context Matters
Are four-letter words part of your workplace parlance? Before you seek to challenge the employee’s unemployment entitlement, consider the context. The commentary to the regulation cited above states: “In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made.”
For example, “language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office. The normal exchange among workers differs according to the occupation. Vulgar language is also used among employees as a friendly banter.”
The EDD recognizes a distinction between coworkers and supervisors. “The common and friendly banter of vulgar language between coworkers constitutes insubordination if directed to a supervisor, unless there was a prior relationship between the supervisor and the employee which allowed such friendly banter.”
In the John Smith hypothetical, the foul language is used in a prim and proper professional office setting, not a warehouse or machine shop. The use of profanity in that context is clearly more troubling.
One F-Bomb Is Not Enough
Generally, the regulations give the employee a pass for using profanity on isolated occasions or while under stress.
For example, if an employee bursts out with a profanity in the heat of the moment during a confrontation with a manager, that one instance will not disqualify him. The EDD looks for misconduct which amounts to “willful or wanton behavior.” A single instance of an offensive remark uttered in the heat of the moment, basically a slip of the tongue, will not rise to that level.
If the claimant had been warned in the past that such language was unacceptable to the employer, and had still continued to express himself or herself by means of it, and was discharged, the discharge would be for misconduct.
Returning to the hypothetical, Mr. Smith had been previously warned about his language. Although he was under the stress of deadlines, in the professional setting of an accountant’s office, his frequent vulgar language could constitute misconduct disqualifying him from benefits.
The employer would increase its odds of prevailing at an EDD hearing by producing prior written warnings or other documentation from the personnel file, along with a copy of the company’s policy prohibiting such language. The live testimony of the manager would further strengthen the case.
Practical Tips:
Make It Policy. The company’s employee handbook should include a prohibition against profanity and a requirement that employees communicate in a professional manner at all times.
Warn. Although California law and company policy may allow the company to discharge employees at will, give a warning before terminating an employee for cussing if you would like to succeed at the EDD benefit determination hearing.
Make A Record. As with most matters of discipline, before taking ultimate measures such as termination, it is preferable to document infractions. An employee will be hard pressed to refute the record at the EDD hearing.
UPCOMING SEMINAR August 2010
Protecting Your Company Against
Unmerited California EDD
Unemployment Benefits Claims
Presenter: Christopher W. Olmsted, Esq. (San Diego, CA)
Date: August 19, 2010
Time: 9:00 a.m. to 10:00 a.m. (Pacific)
Cost: Free!
Location: Online
Frequently overlooked grounds for unemployment benefit disqualification.
How employees might qualify for benefits despite a “voluntary quit,” and what to do about it
Identifying claims worth challenging (and those not worth challenging)
Preparing evidence to support a benefits challenge
Complying with procedural rules to keep your challenge on track
How To Register:
The webinar will be presented through GoToWebinar. To register, follow this link:
https://www2.gotomeeting.com/register/323803323
If you have questions, please email Nicole Schard at nrs@barkerolmsted.com or call her at (619) 682-4040.
Download entire August 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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