Restaurant Workers' Right to Swear Might Be Protected by Law

However, it's usually used as an excuse to terminate workers for other (illegal) reasons.

F-bombs in restaurant kitchens aren't just a made-for-TV spectacle à la Gordon Ramsay: In such a high-pressure environment, tempers often flare, and cooks and chefs are more often than not prone to foul mouths. But as the New York Times examines, for some restaurant employees swearing can come back to haunt them, even occasionally being considered a fireable offense — legally or illegally.

A law professor named Christine Neylon O'Brien tackled the issue of workplace profanity in a paper that's slated to be published in the next issue of the St. John's Law Review, delving into ten such cases that were taken before the National Labor Relations Board. As the Times notes, "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."

"If you're swearing during a discussion about wages or working conditions, you're protected by law."

Often, the NLRB finds that the cursing itself was not the real reason for the firing, and that the employee has had their federal rights violated by being terminated. Take, for example, the case of a Hooters waitress who was fired after she "got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged." The labor board ultimately ruled that the waitress had not been fired for her foul language, but for discussing working conditions — a right that's protected under the National Labor Relations Act — ultimately leading to her being reinstated with back pay.

As O'Brien explains, under Section 7 of the NLRA, all private sector workers are assured the right to discuss workplace issues such as wages, hours, working conditions, and unionization without retaliation from their employers. That means that employees cursing in the process of discussing one of those subjects are protected by law.

But that doesn't mean dishwashers ought to direct a succession of swear words at their executive chef in pursuit of a raise: There are limits as to how much protection the NLRA can offer. O'Brien says it's possible that an employee's profane expressions can be so "egregious, dishonest, threatening, violent or insubordinate" that they go beyond any protection labor law can offer.

And in theory, an employer could legitimately fire an employee for swearing, so long as they weren't discussing wages, workplace conditions, or one of the other aforementioned protected issues. In most states, with a few exceptions, employment is strictly "at-will." That means, as restaurant lawyer James DiPasquale explains, that "in the absence of an employment agreement or a union contract, an employer can fire an employee for practically any reason, fair or unfair," with few limitations apart from the obvious (gender, race, religion, etc.). But it's probably safe to say that for the most part, unless you've severely pissed off your boss in another aspect, you probably won't be getting canned for letting a few expletives fly next time you burn yourself with a saute pan.

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