Overview: Employers should make sure that their policies and practices clearly convey to employees and supervisors the type of conduct that is strictly prohibited by the employer.
This may include, but is not limited to: violence/fighting; verbal abuse; theft; possession or use of illegal drugs in the workplace; inappropriate use of the internet, email, voice mail or other forms of electronic communication; sleeping and loafing on the job; gambling at work; workplace bullying; and harassment or employee discrimination.
These types of activities can have a detrimental effect on the employer's business as well as employee productivity and morale. Employers should make sure that employees and supervisors understand the parameters of prohibited conduct and let them know the disciplinary consequences.
The policies regarding prohibited conduct should be clearly defined so employees and supervisors are well aware of the employer's expectations. Further, all employees and supervisors should be instructed to report any prohibited conduct by co-workers or supervisors and bring it to the employer's attention so that corrective measures may be taken.
Trends: While employers have a clear right to manage their workforce and implement workplace rules and policies regarding prohibited conduct, employers should be careful due to recent guidance from the National Labor Relations Board (NLRB).
The NLRB has demonstrated that it is willing to strike down facially neutral employment policies which violate the right of both union and non-union employees to engage in protected concerted activity or collective action to improve workplace conditions under Section 7 of the National Labor Relations Act (NLRA).
For example, the NLRB has invalidated workplace polices that sought to make employee solicitation and social media use at work prohibited conduct because it determined that this may prevent employees from engaging in protected activity.
Thus, employers should narrowly draft policies and use specific examples of protected conduct to show that the employer is not trying to interfere with employee rights, but instead trying to protect the employer's legitimate business interests.
Author: Beth P. Zoller, JD, Legal Editor
On this podcast, employment attorney Robin Shea discusses why these one-size-fits-all discipline policies do not work for employers and, in fact, may be far more harmful than helpful.
An employer may use this policy to formalize the disciplinary policy, including disciplinary procedures and work rules, in a written document that may be included in the employee handbook. Weak or inconsistent responses to insubordination lead to poor morale, decreased productivity and low employee retention; just as important, lack of uniformity in the application of disciplinary rules can lead to discrimination lawsuits.
An employer may use this policy to protect against employees engaging in activities outside of work that could jeopardize the employer's interests. Even after the work day ends, employee conduct and behavior can adversely affect an employer's image and business interests.
Updated guidance to reflect development relating to an employer's liability and weapons in the workplace, effective November 1, 2017.
Updated guidance to reflect expansion of posting requirements, effective November 1, 2017.
HR guidance on ensuring that policies adequately advise employees and supervisors of prohibited workplace conduct and the consequences of engaging in such behavior.