Calling Your Boss A Clown: No Laughing Matter


A Pennsylvania man lost his job in September 2012 and is now without unemployment compensation. Why? He called his boss a "clown."

On October 17, 2013, the Pennsylvania Commonwealth Court affirmed the decision of an unemployment compensation Referee and the Unemployment Compensation Board of Review denying Alfonso Miller unemployment benefits.

Miller, a 5-year employee of a private Philadelphia-based organization providing comprehensive services to individuals with disabilities, had some choice words for his supervisor during his regularly scheduled performance evaluation. After calling his supervisor a "[expletive] clown" and referring to the entire evaluation process as a joke, Miller was fired from his job.

Under Pennsylvania law, a former employee is ineligible for unemployment compensation for any week "in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." An employer always has the burden of proving that an employee engaged in willful misconduct and Pennsylvania courts define "willful misconduct" as:

1. a wanton and willful disregard of the employer's interests;
2. a deliberate violation of the employer's rules;
3. a disregard of the standards of behavior that an employer rightfully can expect from its employees;
4. negligence that manifests culpability, wrongful intent, or evil design; or
5. an intentional and substantial disregard of the employer's interests or the employee's duties and obligations.

Miller argued to the court that an employer should expect that its employees will not always get along, that an employee and his supervisor might sometimes disagree and "questionable language" may occasionally be used by an employee when disagreeing with his supervisors. While an employer may expect this type of behavior, the Commonwealth Court has confirmed that there is no need for an employer to tolerate it and that such language can bar a claimant from being awarded unemployment compensation benefits. Miller never challenged his employer's right to fire him. Rather, he asserted that his comments were protected by the First Amendment to the federal constitution and that denial of benefits amounted to unconstitutional censorship. The court did not buy this argument.

The Commonwealth Court stated that "an employee’s use of abusive, vulgar or offensive language toward a superior is a form of insubordination that can constitute willful misconduct, even if the employer has not adopted a specific work rule prohibiting such language" and that even one instance of profanity can constitute willful misconduct. Furthermore, the court found that the First Amendment argument was a non-starter because Miller was neither speaking out on a matter of public concern nor was his employer a public entity subject to the constraints of the First Amendment.

Employers should remember that former employees are not automatically awarded unemployment compensation. Employees can be ineligible for unemployment benefits for engaging in a number of activities, which may constitute willful misconduct under the law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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