From Your Employment Attorney

Getting Unemployment Insurance Benefits Even If You Were Fired for Using Profanity or Obscenities at Work.

You may have been discharged because you allegedly used abusive or profane language toward a co-worker on the job. Can you still get your unemployment insurance benefits? Maybe. It depends on whether or not you have committed “misconduct” as that term is understood by the EDD.


You will have committed “misconduct” if you used vulgar, profane, abusive, obscene, derogatory, or offensive language of a vile nature, and if the language was unjustified and not within the normal exchange and customary good-natured banter between employees.


What is Normal for Your Working Environment?


Whether or not the language was justified as being within the norms of the work environment will depend on the particular employment. Language used in a machine shop or 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 in some occupations as friendly banter. The circumstances under which the employee makes the statements need to be taken into consideration.


For example: While he was working in the warehouse, a male employee drove a forklift down the aisle and almost hit the claimant. Because of the near miss, the claimant told the forklift operator, to watch out. The girlfriend of the forklift driver (a married man) was standing nearby and shouted at the claimant, “shut up.” The claimant responded “Shut up, whore!” He was discharged for using obscenities. At the EDD hearing the claimant testified that he used obscenities because he was still emotionally upset at the near miss by the forklift operator, and he resented the forklift operator’s girlfriend coming to the defense of the forklift operator. The claimant also testified that he never used such language or any profanity before, and that profanities and obscenities were uttered by employees in the warehouse area on occasions. In this case there was no “misconduct” for EDD purposes. The claimant’s use of obscenities was due to his being emotionally upset. Moreover, the incident was an isolated one, and obscenities were not uncommon in the area where the claimant worked.


In another example: A co-worker asked the claimant for certain supplies. The claimant was unable to give her immediate service. The claimant believed that the co-worker complained to her supervisor about the incident. When the claimant saw the co-worker later in the day the claimant said, “Some people sure are asinine.” The co-worker complained to the employer. The employer discharged the claimant for using alleged abusive and profane language. Again the discharge was not for “misconduct” because his statement was not abusive or profane and did not go beyond the customary give and take between employees in an industrial establishment.


I Was Only Kidding!


What if you are only “joking.” If a claimant contends that he or she used the abusive language jokingly, and the person to whom the remarks were made did not take the language seriously, then there would be no “misconduct,” and you may be eligible for unemployment. Keep in mind, however, that in view of the climate we live in – that is, the threat of potential terrorist activities occurring anywhere at any time, including in the workplace – any obscene or profane language that can be interpreted as a threatening remark at work is taken much more seriously than it used to be, even if it is said in jest. Therefore, you may have difficulty trying to convince the judge that you were “only kidding” when you made your statement, especially if the employer or someone else felt compelled to report it as a terrorist threat.


Of course, if the person to whom the abusive remarks were made did not interpret them in a joking sense, and was intimated and distracted from his or her work because of the remarks, then your discharge would be for “misconduct” and you would not be entitled to unemployment benefits.


Ignoring an Employer Rule Against Profanity.


Finally, if the employer has an established and well-known company rule prohibiting the use of profane words, an employee would generally be discharged for misconduct if he or she ignored this rule and repeatedly used profanity.


For example: The claimant worked as a bellman for a hotel. The claimant was charged with the responsibility of picking up clients at the airport. The claimant was heard to use the terms “goddamn” and “hell” over the radio connecting the van that he was driving with the central office. This conversation could be overheard by hotel guests and vendors and “goddamn” and “hell” were unacceptable language to be used. The employer counseled the claimant regarding the proper language to be used in the workplace and warned him in this regard. In the final incident, the claimant called a co-worker a bitch, and it was loud enough for others to overhear. The co-worker reported the incident to the employer. The claimant was discharged for the incident. The discharge was for “misconduct” and he was not entitled to unemployment benefits. The claimant’s repeated use of unacceptable language, even after warnings, evidenced a disregard of his duty to the employer.


How About a Warning!


Are you entitled to a warning before what you “let slip” is considered “misconduct.” Not always. It may depend on the severity of the statements you made. You may not be entitled to a warning if your first offense is so vile in nature or said in such a threatening manner that it disrupts the employer’s business operations or results in genuine fear on the part of the recipient.


So, will you be denied unemployment insurance benefits because you cursed or swore at work? Not always. But have evidence at your hearing that will help convince the judge that the language you used was “normal” for your workplace, or that it was not taken seriously by the recipient, or that it was an isolated incident on your part. Call your own witnesses if necessary and good luck with your hearing!


The foregoing is a general guide for you to use when you are appealing the denial of your unemployment benefits before a judge, because you were discharged for misconduct for directing profanity or obscenities to a co-worker at work. It is not a substitute for legal advice and does not cover every conceivable situation. You may want to speak with an attorney for advice regarding your specific case.


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Caveat: The foregoing information is for purposes of receiving California unemployment insurance benefits only. You should speak to an attorney if you think you have been wrongfully terminated or if your employer has otherwise violated your rights.

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