Author: Wayne D. Garris

Overview

This Supervisor Briefing provides practical guidance on how to develop an employee conduct policy and manage employee misconduct. It examines the law and best practices, as follows:

  1. Employee Misconduct
  2. Conduct Policies
  3. Informal Methods of Addressing Misconduct
  4. Progressive Discipline
  5. Alternatives to Discipline
  6. Discipline Procedures
  7. Test Yourself

Employee Misconduct

There is no legal definition of misconduct in the employment context. While there are some acts that would constitute misconduct in any setting, such as violence or theft, employers will have to tailor their misconduct policies to reflect the unique features of their businesses. For larger companies, each department may need to define misconduct to reflect the setting of their specific areas.

An employer may choose to identify acts known as gross misconduct. Gross misconduct occurs when an employee commits an act so egregious that it provides grounds for termination. Examples of actions that may constitute gross misconduct may include:

  • Sexual harassment;
  • Theft of employer property;
  • Physical violence; and
  • Inappropriate use of employer equipment.

Tip

Even when an employee commits gross misconduct, an employer should still evaluate the situation by conducting an investigation and allowing the employee the opportunity to explain his or her conduct. The investigation may bring to light mitigating circumstances or the involvement of other employees, depending on the nature of the situation.

Many employers attempt to make employment decisions based on an employee's off-duty conduct. An employer's legal ability to investigate an employee's off-duty conduct and to discipline an employee for that conduct varies among the states. Many states have enacted privacy laws that prohibit an employer from monitoring, or disciplining employees for, lawful off-duty conduct. Other states are less stringent and do not limit an employer's authority to make decisions based on certain off-duty conduct. Many states will allow an employer to discipline an employee for off-duty conduct if the conduct has a negative effect on the employer's business.

Did you know?

In recent years many employers have enacted policies in which they refuse to hire applicants, and even terminate employees who smoke cigarettes while off duty. This has prompted some states to enact laws prohibiting employers from making employment decisions based on an individual's status as a smoker. Some states broaden the protection, prohibiting employers from taking adverse action against employees for the "use or nonuse of a lawful product" or for engaging in a lawful activity while off duty. Before adopting a policy regarding off-duty conduct, employers should ensure that this act is allowed under their respective state and local laws.

Tip

Even in states that allow employers to investigate off-duty conduct, an employer should proceed with caution. If an employer learns information about an employee that protects the employee from discrimination, i.e. religion or disability, and the employer takes an adverse employment action, the employee could claim discrimination even if the employment decision had been taken for a legitimate reason.

Conduct Policies

The employer should develop a policy that addresses expected employee conduct, defines misconduct, and outlines the consequences of misconduct. The policy should include procedures for investigations and hearings. Employees should be allowed the opportunity to speak on their own behalf when facing accusations.

Although an employer will need to tailor the policy to its specific needs, some of the general topics that the policy may include are:

  • Discrimination and harassment;
  • Workplace violence;
  • Workplace Theft;
  • Substance abuse;
  • Safety rules;
  • Ethics;
  • Dress code;
  • Confidentiality;
  • Gambling;
  • Insubordination;
  • Use of employer-issued computers and handheld devices; and
  • Attendance.

The employer should review the policy with a candidate at the preemployment stage and periodically reiterate it at evaluation meetings, verbal counseling meetings and any other discipline-related meetings.

Did you know?

Many collective bargaining agreements include provisions for bargaining unit employees to appeal or challenge employer discipline. An employer must ensure that its policies do not violate the collective bargaining agreement with respect to union employees.

Informal Methods of Addressing Misconduct

Depending upon the circumstances, an employer may decide to hold an informal meeting with an employee to address misconduct instead of moving immediately to formal discipline. An employer may choose to employ this method for minor or first-time violations of the discipline policy. It is a best practice, depending on the type and level of misconduct, to give an employee a warning and an opportunity to correct the behavior before imposing formal discipline, especially for a first-time offense. One warning may be all that is needed, and the employee will appreciate not having a black mark on their record, as well as having the opportunity to correct their conduct outside of formal discipline.

Typically, a supervisor meets with the employee to discuss the employee's misconduct and explains the employer's expectations moving forward. No disciplinary information is added to the employee's personnel file. However, the supervisor should draft a brief statement to document that the meeting took place. Additionally, a date should be set to review the issues discussed in the meeting to determine if the employee's conduct has improved.

Progressive Discipline

Progressive discipline is a commonly used method of formal discipline in which an employer imposes increasingly stern measures as an employee fails to improve or correct misconduct. Employers may include as many disciplinary steps as necessary. Progressive discipline usually involves the following stages, though employers may use as many levels as necessary.

Verbal Counseling

Verbal counseling is usually the first level of progressive discipline. This typically is a private discussion with the employee, the supervisor, and a representative from human resources if necessary. This meeting should be used to alert the employee of a problem that the employer wants to prevent from becoming more serious. At this stage, nothing is placed in the employee's personnel file. However, the employer should draft a letter outlining the issues discussed and any agreements made.

Written Warning

If the employee's conduct does not improve after verbal counseling, usually within a defined time period, an employer may decide to proceed with a written warning. A supervisor should meet with the employee again to discuss the lack of improvement and draft the written warning after the meeting which explains the reason for the warning and reiterate the topics discussed in the meeting. The warning should include:

  • A statement about the past, reviewing the employee's history with respect to the problem;
  • A statement about the present, describing the details of the current situation, including the employee's explanation; and
  • A statement of the future, describing the expectations and the consequences of continued failure.

Tip

Many employers request that an employee sign the written warning. Often, an employee may refuse to sign the document, but the supervisor should still sign the warning and provide the employee with a copy of the document, noting that the employee was given the opportunity to sign, but refused.

Suspension

Before suspending an employee, the employee should be allowed to offer an explanation, especially if the suspension does not come after other forms of progressive discipline, but is imposed as a discipline of first resort based on the seriousness of the conduct or incident. The length of the suspension should be dependent upon the seriousness of the misconduct and whether the employee's presence would potentially affect the health and safety of other employees or customers, if applicable.

After meeting with the employee and deciding to impose a suspension, the supervisor should write a brief statement and provide it to the employee. The statement should outline the reasons for suspension, as well as the start and end dates of the suspension. Additionally, the letter should reemphasize the employer's specific expectations for improved conduct and remind the employee that termination could be the next consequence for further misconduct.

Did you know?

Under the Fair Labor Standards Act (FLSA), an employer must have a written policy available to all employees before an employer may suspend an exempt employee without pay.

Termination

Termination is the final step in progressive discipline. Unlike the other steps of discipline, the decision to terminate an employee should be discussed and agreed upon by the employee's direct supervisor, a human resources representative, and any other appropriate management representatives.

Once the decision to terminate an employee has been made, a formal letter of termination should be drafted. The letter should inform the employee of the effective date of dismissal and the reason for termination. The letter should also summarize each step of progressive discipline that has been imposed, including each incident of policy or rule violation, the dates of each act, and any discussions or agreements with the employee.

Sometimes an employee will file a claim of discrimination to challenge an employer's decision to terminate employment. The detailed termination letter will help the employer in the event that this occurs by providing a detailed summary of the employee's actions as well as the employer's responses showing that the decision was legitimate and within the boundaries of the law.

Alternatives to Discipline

There are several alternatives to formal discipline that an employer may use when appropriate:

Discipline Description When use may be appropriate

Agreement In Lieu of Discipline

Employee agrees to improve conduct. Failure to uphold agreement will result in some penalty.

If employer believes that future misconduct is unlikely.

Last Chance Agreement

A type of agreement in lieu of discipline in which the penalty for violating the agreement is termination.

When long-time service or past merit makes it desirable to give an employee one last chance to maintain employment.

Transfer

An employee is removed from a work group or department and placed in another.

Typically used when misconduct appears to be specific to a location, such as a personal conflict with a supervisor.

Employee Assistance Program

Employee is referred to employee assistance program in order to avoid discipline.

An employer may use this technique if it suspects that misconduct may be related to personal or emotional difficulties or substance abuse.

Discipline Procedures

Once an employee has been accused of or has been caught engaging in misconduct, an employer should have a procedure in place to ensure that the employee has the opportunity to provide an explanation of all events from the employee's point of view and to provide the employer with relevant documentation.

Typically, the first step in the process is the investigation. Investigations are especially important when a third party accuses an employee of misconduct and the supervisor does not have firsthand knowledge of the event. During the investigation, the supervisor should locate any witnesses, talk to the manager on duty, if applicable, and determine whether the employee has a history of discipline. A good practice is to get written statements signed by witnesses if they are comfortable doing so, but anonymous reports, if they appear credible, may carry some weight as well.

Tip

Depending on the nature of the misconduct, it may be necessary to suspend the employee for the duration of the investigation. This is not a disciplinary action, but it is a useful tool if the employee's presence would somehow impede the investigation.

Once the supervisor has concluded the investigation, a meeting should be held with the employee. This meeting may take the form of a hearing or a simple meeting that includes the manager and a human resources representative. The employee may also be accompanied by an attorney, union representative, or other representative. The employee should have the opportunity to provide an explanation and present any evidence or witnesses on his or her behalf. At the end of the meeting, the supervisor should inform the employee of what disciplinary steps, if any, will be taken and provide the employee with a written explanation shortly after the meeting.

A disciplinary meeting with an employee can become highly emotional and volatile. It is important for the supervisor to remain calm, objective, and accurate no matter how the employee reacts during the meeting. The chart below provides advice on how to effectively navigate a disciplinary meeting.

Do Don't

Use factual, objective, non-emotional language to describe the issue with the employee.

Express personal feelings about the employee or make personal attacks against the employee.

Explain the employer's expectations of employees.

Engage in a discussion of the conduct of or discipline given to other employees.

Ask the employee questions, allow the employee to answer questions, and listen attentively to the employee's responses.

Prevent the employee from speaking on his or her behalf.

Maintain confidentiality to the extent possible and request that the employee keep the topics discussed confidential.

Bring other employees into the meeting to serve as witnesses.

Allow the employee to explain his or her perspective about the conduct.

Summarily discipline the employee without allowing the employee a chance to speak.

Confirm that the employee understands your position by following up with a brief letter.

Neglect to discuss the meeting or topics discussed at the meeting after the meeting ends.

Perhaps most importantly, every step in the disciplinary process should be documented no matter how formal or informal. This documentation should be maintained by a supervisor or by the human resources department. If an employer or supervisor has to defend the decision to suspend or terminate an employee, these documents will be necessary to show the steps taken and ultimately prove that the measures taken were legitimate. Without full documentation, it may appear that an action taken against an employee was baseless or pretext for a discriminatory or otherwise illegal reason.

Test Yourself

  1. Which of the following employees has likely committed gross misconduct in the workplace?
    1. An employee who arrives to work ten minutes late.
    2. An employee who violates the employer's dress code.
    3. An employee who gets into a physical altercation with a co-worker.
    4. An employee who improperly takes an extended lunch break.
  2. A supervisor learns that an employee belongs to a religious group whose views the supervisor and other employees find offensive. Although the employee does not talk about her beliefs unless asked, co-workers no longer feel comfortable working with the employee. How may the supervisor proceed?
    1. Explain to her co-workers that she has the right to hold her personal religious beliefs, and if they harass her because of her religion, it would violate company policy.
    2. Hold a meeting with the employee to discuss her religious beliefs.
    3. Terminate the employee because her beliefs have affected her co-workers in the performance of their jobs.
    4. Inform the employee that she may not discuss her religion at work out of respect for her co-workers.
  3. Which is typically the first step in progressive discipline?
    1. Verbal Counseling
    2. Termination
    3. Transfer
    4. Written Warning
  4. Which alternative form of discipline provides an employee with a final opportunity to improve performance or face termination?
    1. Coaching
    2. Last Chance Agreement
    3. Reduction in Pay
    4. Suspension
  5. While investigating possible misconduct by an employee, a manager speaks to a night shift supervisor who witnessed the act. The supervisor provides a detailed description of what occurred. What should the manager do next?
    1. Demand that the supervisor serve as a witness at a disciplinary hearing.
    2. Immediately terminate the employee, citing the supervisor's eyewitness account.
    3. Thank the supervisor and move forward with the investigation.
    4. Ask the supervisor to sign a written statement of what he saw to the manager.

Answers

  1. c. Gross misconduct typically involves a serious act. Physical violence has the potential to cause harm and creates an unsafe working environment. An employer could possibly terminate an employee who commits a violent act. The conduct in choices a, b, and d would all likely violate a policy but are relatively minor and may be corrected with counseling.
  2. a. An employer is prohibited from discriminating against employees on the basis of religion, and must ensure that co-workers do not harass employees on that basis as well. However, if the employee were to proselytize to other employees to the point that her actions constituted harassment toward them, she can be asked to stop. Choices b and d are not advisable because an employee may feel singled out, harassed or otherwise discriminated against based on the content of the conversation, which directly addresses religion but may not concern job-related issues. Choice c describes an adverse employment action (i.e., termination) based on an employee's religion, which could be proven to be in violation of Title VII retaliation protections during an agency inquiry or federal court claim.
  3. a. Verbal counseling is typically the first step in progressive discipline. The manager will usually discuss the issues with the employee and make a plan for improvement. If the employee fails to improve, more stringent discipline may be used. Choice b is usually the last step in progressive discipline. Choice c may be used following a verbal warning or perhaps another more advanced step of discipline at an employer's discretion, but does not necessarily require termination if the employee fails to improve his or her performance. Choice d is usually the second step in traditional progressive discipline, and is not necessarily followed by termination.
  4. b. The last chance agreement is an agreement in lieu of discipline in which the employee will be terminated if he or she fails to meet the terms of the agreement. Choices a and d do not necessarily entail a final opportunity to improve performance or face termination, but may be part of progressive discipline. Choice d, suspension, is not an alternative form of discipline and may not necessarily result in termination.
  5. d. Witness statements, along with all other information gathered during investigations and meetings, should be documented as part of the disciplinary process. Choice a presupposes a need for a disciplinary hearing, which may not be required if the accused employee is at-will. Choice b is not the best choice because it may indicate a rush to judgment during the investigation; in addition, a termination decision should be adequately reviewed. Choice c is incorrect because it describes poor documentation and recordkeeping practices during a disciplinary investigation.