Little did the managers of a Hooters restaurant realize that a bikini contest they sponsored in 2013 would end up testing the limits of labor law.
When a group of waitresses participated in the contest, held at a Hooters in Ontario, Calif., one of the losers was suspicious of the outcome. The winner’s boyfriend and her best friend were judges, after all. Not only that, but the winner had organized the contest. After the waitress complained that the contest was rigged, she was fired. The question is why.
The human resources department said the waitress was fired for cursing at the winner, and for writing negative social media posts. The waitress disagreed and brought the case before the National Labor Relations Board. As a case involving workplace profanity, it attracted the attention of Christine Neylon O'Brien, a business law professor at Boston College. O'Brien discusses 10 such cases, including the Hooters episode, in a paper set to be published in St. John’s Law Review.
“Engaging in profanity at work or with co-workers online is certainly controversial, especially when the profanity is directed at managers or harms the company’s reputation,” O'Brien notes in her paper. But tolerance for swearing varies from workplace to workplace. The question at the heart of many such cases is whether an employee’s swearing (or alleged swearing) is truly the reason for a firing or other disciplinary action. In some cases, it is found to be merely a pretext.
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Engaging in profanity at work or with co-workers online is certainly controversial ...
Christine O'Brien, Boston College law professor
In the case above, for example, an administrative law judge ruled that the waitress had been fired not for cursing or negative social media posts, but for discussing working conditions. The company was ordered to reinstate her, and she received back pay.
Workers are permitted to discuss wages, hours and working conditions under Section 7 of the National Labor Relations Act. The law, which has been in effect since 1935, applies to private sector employees, and not just unionized ones. It also applies to social media posts and not just spoken words inside the actual workplace.
Sometimes workers get mad about the way they are treated, and sometimes that causes them to swear. If they are fired for swearing, “What’s the past practice for this kind of misbehavior?” O'Brien said.
If all the employees swear like sailors, then a dismissal over cursing may not be defensible. Sometimes there is evidence that employers even try to provoke workers into swearing so they can fire them, O'Brien said. Whether the profanity occurred in front of customers may also be relevant, she said.
When does swearing related to workplace conditions cross the line? It depends on the situation.
“Employee conduct that includes swearing may be vulgar, profane and offensive and still remain protected,” O'Brien writes in her paper. On the other hand, the conduct may be so “egregious, dishonest, threatening, violent or insubordinate” that it exceeds the protection of labor law.