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Protected speech & profanity: When is it illegal to fire someone?

Anyone who has been fired from a job has likely had the following thought, if only fleetingly: "Was I fired for the reasons my employer stated, or was that just an excuse?" Unfortunately, too many employers are able to fire workers for illegal reasons masked as legitimate.

In 2013, for instance, a woman was fired from her job at a Hooters restaurant in California. Her employer said that the termination was due to swearing at another employee and writing negative social media posts. In a move that is rare for someone working in a modest-paying job, she appealed her firing to the National Labor Relations Board. Upon reviewing the case, an administrative law judge ruled that the woman had been fired for discussing working conditions, which is protected by the National Labor Relations Act.

To be sure, someone could reasonably be fired for swearing or otherwise acting inappropriately at work. But when determining whether the firing was legitimate, context is important. Do other employees regularly use foul language? Did the person swear at a manager or customer? Did a manager provoke the employee to swear just to create an excuse to fire that worker?

In the Hooters case, the immediate relevance of the employee's swearing (discussing working conditions) may not have been obvious. She was, after all, complaining about a work-sponsored bikini competition. But because the woman was engaging in protected speech, the judge ordered the company to reinstate her and compensate her with back pay.

Because this can be a tricky area of employment law, it is often good practice for employers to give their workers the benefit of the doubt if the reason for an employee's apparent misbehavior is unclear. And if you are currently facing a similar situation - as an employee or employer - you may want to seek the advice of an experienced employment law attorney.

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