UNEMPLOYMENT CLAIMS: Cursing employee denied unemployment benefits

by McAfee & Taft

Hard to believe, but this spring was the first time an Oklahoma case answered the question whether cursing-employeeoffensive language directed by an employee toward a supervisor disqualifies the fired employee from receiving unemployment benefits. Like many employment questions, the answer is not as clear cut as you might expect.

Throw-down at the car dealership

Jeffrey Broyles worked as the used car manager for South Pointe Chevrolet and South Pointe Chrysler-Jeep-Dodge in Tulsa, Oklahoma. Broyles reported to Derek Ellis, South Pointe’s general sales manager. Chris Anderson was the general manager. One afternoon when Broyles had taken a break from work to eat his lunch, a customer asked Broyles for help looking for a car. Broyles and Ellis’ descriptions of how Broyles responded to the customer varied significantly.  Let’s just say Ellis felt Broyles had displayed a bad attitude and had treated the customer disrespectfully.

When the customer left the dealership, Ellis spoke with Broyles. He told Broyles to “watch his attitude with the customers and the salespeople.”  Ellis emphasized the need to help customers and behave in a positive fashion.  According to Ellis, Broyles reacted poorly to their talk and made a comment under his breath. At that point, Ellis told Broyles: “if he didn’t want to be here and he didn’t want to change his attitude, then he could go home.”  Broyles grabbed his things and left. According to Ellis, Broyles’ parting shot was: “I’m tired of you being a total and complete f****** d***.”

Broyles reported to work the next day.  After Ellis talked with general manager Anderson about Broyles’ statement to him the previous day, Broyles was fired. When Broyles subsequently applied for unemployment benefits, South Pointe fought his application on the grounds that Broyles’ statement to general manager Ellis amounted to misconduct, thereby disqualifying him from unemployment benefits.

When is cursing a disqualifier?

Because there were no reported Oklahoma cases addressing the issue, the Oklahoma Court of Appeals looked at what other states considered when deciding if an employee who was fired for cursing a supervisor was entitled to receive unemployment. Noting that such behavior by an employee toward a manager was invariably willful and deliberate, the Oklahoma court agreed employers had a right to expect their workforce to treat managers with decency and civility. To decide whether the cursing of a manager should disqualify a fired employee from receiving unemployment benefits, the court observed the following factors should come into play:

  • How severe was the language used?
  • How much cursing was involved?
  • Were customers or other employees present during the cursing?
  • Was the cursing provoked by the manager?
  • Had there been prior warnings about cursing?
  • Was disobedience associated with the cursing?
  • Did a threat of violence accompany the cursing?

Broyles’ cursing of Ellis did not fall into the “friendly badgering” category and was clearly confrontational and disrespectful toward his supervisor. Making matters worse, Broyles took his parting shot at Ellis in the presence of at least two other employees.  Finding his conduct “was a deliberate disregard of the standards of behavior [South Pointe] has a right to expect from its employees,” the court agreed Broyles should not receive Oklahoma unemployment benefits.

Stay classy, Oklahoma

Not every employee fired for cursing their supervisor will be denied unemployment benefits. But when contesting such an application, keep in mind the factors the Oklahoma Court of Appeals identified. And whatever happens, make sure your supervisor does not respond in kind to their subordinate’s cursing.  Stay classy, Oklahoma.

  • Broyles v. Oklahoma Employment Security Commission, 2014 OK CIV APP 53

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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