No matter how many policies you may have in place, employee misconduct is likely to occur. Some employee misconduct is less serious than others, and it can usually be handled by a manager. Tardiness, absenteeism, “no show, no call” types of behavior usually fit that category.
Then there is more serious misconduct or gross misconduct that includes sexual harassment, other types of harassment, discrimination, workplace violence and fraud.
An Overview of Employee Misconduct
Workplace misconduct occurs when an employee engages in behavior that violates your organization’s code of conduct or a company policy that defines how employees are expected to behave at work.
Misconduct can include unprofessional, unethical or criminal behavior that occurs in the workplace and violates company policy. It can be detrimental to productivity, individual employees or co-workers, employee morale and the company’s reputation. Misconduct often threatens the safety of the work environment; it must be handled quickly and consistently to send the message that it will not be tolerated and that there are repercussions, in the form of disciplinary procedures, which will surely result if an employee engages in these types of negative behavior.
Common Types of Employee Misconduct
There are many types of employee misconduct that range from simple misconduct such as tardiness and absenteeism to gross misconduct that includes more
serious misconduct such as sexual harassment, violence, all types of discrimination and theft of or damage to company property.
Simple Misconduct
Simple misconduct can be defined as a “willful and deliberate disregard of an employer’s interests” and is usually not grounds for immediate termination. This type of misconduct is generally handled by providing the employee with a warning or having a meeting to discuss the misconduct that took place.
Some examples of simple misconduct include:
Chronic Lateness
Employees that consistently come to work past the time they are expected to arrive can be terminated for chronic lateness. The expectations must be clearly articulated in company guidelines, so there is no doubt as to what time employees are expected to arrive. Moreover, the employee’s tardiness should impact the nature of the work being done. For example, if the employee is expected to open a retail store by a certain time or attend a mandatory morning meeting, chronic lateness can impair the day-to-day operations of the business as well as the performance of co-workers.
Unwanted Gift Giving
It may seem counterintuitive, but giving gifts to another co-worker, subordinate or manager can be deemed employee misconduct. In particular, if the gifts are unwanted but the employee giving the gifts persists, the behavior can be a form of harassment, possibly sexual harassment. For employers, it is imperative that managers and human resource professionals be particularly vigilant around certain holidays like Valentine’s Day or even around the time of the company holiday party as I pointed out in After the Holiday Party Fizz, the HR Headache Begins.
Taking Office Supplies Home
It’s hard to imagine that an employee that takes pens, pencils and post-it notes home from the office has done anything criminal. For a restaurant, it might be a bottle of wine or an expensive food item that goes missing. The reality is that taking office supplies or other items from the workplace is stealing and constitutes theft of company property. The Spherion survey notes that while pens, pencils, rulers and post-it notes are the most popular items to go missing, the list of objects taken by employees extends to laptops, cellphones and calculators. If it moves beyond small items, it can contribute to shrinkage, or inventory recorded on a company’s books that goes missing. The Federal Bureau of Investigation estimates that shrinkage is the fastest growing crime in the United States, and not surprisingly, in addition to it being a form of employee misconduct, it is a leading cause of small business failure 30% of the time.
Personal Use of Company Wifi
A county clerk in Chicago used the office Wi-Fi to respond to campaign related emails, a violation of the county policy forbidding public officials from engaging in campaign-related activities while working. The ethics violation cost the clerk a hefty fine and one of his employees his job. In fact, it is not uncommon for companies to have internet usage policies in place and for personal use of the company Wi-Fi to be prohibited. Wireless internet depends upon bandwidth for speed and optimal performance, so using the business Wi-Fi for personal activities is often against company policy. To some, using company Wi-Fi for personal use is just the modern version of stealing company property; and as the case of the Chicago County clerk confirms, it can have serious ramifications.
Unscheduled Worker Absence
Most employers offer sick leave to their employees and have a sick leave policy that encompasses scheduled absences. Within company guidelines, employees can take and plan scheduled absences and still be paid. However, calling in sick without good reason or lying about being ill or time taken off work, is a form of misconduct. Employees that frequently miss work without notice or call in sick as a means to get a day off work have unscheduled worker absences, quite distinct from planned absences that fall within company policy. Notably, unscheduled worker absences spike around holidays and long weekends.
Other examples may include:
- Rude comments made to a co-worker or superior
- Safety violations
- Poor job performance
- Lying on a job application
- Failure to follow a supervisor’s direct orders
Acts of simple misconduct can be elevated to more serious misconduct if they become a pattern. Generally speaking, managers and/or HR can attempt to correct these types of conduct and they may require a verbal warning or written warning and ongoing monitoring to ensure that the misconduct no longer poses an issue.
Gross Misconduct
Gross misconduct is a step up from simple misconduct—this type means that the employee has committed a serious offense that is considered unethical, illegal or very inappropriate. The consequences following an act of gross misconduct can warrant the immediate termination of employees, and even going as far as legal action taking place based on the offense.
Common examples of gross misconduct include:
Sexual Misconduct
This can take a variety of forms, such as inappropriate behavior in the workplace. The challenging aspect of this type of misconduct is that many people may not understand the difference between a harmless joke and harassment versus what constitutes a threat. Hold consistent training sessions and staff discussions to make sure everyone is aware of rules and regulations. Dealing with this type of alleged misconduct can be difficult and sometimes complicated, so it’s important to have a clear policy, act promptly and keep detailed records of any incidents that occur.
Harassment
Harassment is a serious issue that needs to be dealt with swiftly and effectively. Employees should not feel that they are being singled out, and employers must act quickly to ensure that all employees are protected. Any form of harassment is a form of misconduct. This includes offensive language or gestures, physical abuse, threatening behavior, intimidation or humiliation. While some cases may only be considered minor and can be handled through a simple warning, multiple instances of harassment may warrant termination – and it can be immediate if your termination policy allows for it.
Fraud or Theft
Stealing from the company, such as company property or misuse of funds, is a serious matter that can negatively affect the business in a tremendous way. It is crucial that you take steps to ensure that any employee suspected of fraud or theft is investigated immediately. If the employee has been caught with incriminating evidence, harsh consequences must be meted out to prevent others from following their example.
Sometimes an employee can be fired for actions they took outside of work, especially if the action impacts their job or the company’s reputation. For example, if an employee is convicted of a crime, unrelated to work, this may be a reason for dismissal.
Other instances of gross misconduct include:
- Violent behavior or making threats to commit violent behavior
- Alcohol/substance abuse at work
- Discrimination based on gender, race, religion, politics, national origin, color, sexual orientation, etc. as protected by the Equal Employment Opportunity Commission (EEOC)
- Creating a toxic or hostile work environment
- Unethical relationships (i.e., superior and subordinate)
- Serious breach of safety procedures
While these examples can sometimes lead to an employee’s immediate dismissal, depending on the severity of the act, many times the employer must conduct an internal investigation with the employee who is alleged to have been harmed, the alleged subject of the gross misconduct and any witnesses to determine the correct disciplinary process.
Addressing Employee Misconduct
It’s important to have clear processes to address employee misconduct. Depending on the issue, you may need to conduct an investigation before determining how you handle it.
1. Establish an Investigation Plan and Disciplinary Action Policy
Before hiring even one employee, the organization should establish an effective investigation plan and disciplinary action policy, along with the procedures or steps that must be followed when an incident is alleged to have occurred. Ineffectively handling employee misconduct can result in damage to the organization’s reputation, lawsuits and reduced employee morale and productivity. The organization must specify the employee behavior that is expected in the workplace, that there are consequences when any type of offensive behavior occurs and what those consequences could potentially look like.
2. Create a Reporting Process
Employees also must understand that they can safely report acts of misconduct, that they will be heard, that an investigation will swiftly follow and that they need not fear retaliation of any kind.
3. Conduct an Investigation
The employee relations or human resources team needs to investigate misconduct by what company policy was violated, determining who is involved, who they need to interview and ensure that all information pertaining to an investigation is documented and stored in a secure location, preferably in a technology solution that is specifically built for employee relations case management and investigations. Documentation must include who was interviewed, dates and times of interviews, the questions asked and the interviewees responses to interview questions. Documentation must be thorough and consistent in all cases of misconduct so as to be defensible should a lawsuit be filed even years down the road.
For gross misconduct, you may need to consider obtaining a third-party investigator or legal counsel to protect the organization and individuals involved from any repercussions or when cases of employee misconduct warrant expert legal advice or investigation.
4. Document Incident
Clear and thorough incident documentation is crucial. It provides a detailed record of the facts—what happened, when it happened and what was discovered. In the event of legal action or inquiries, this documentation must withstand scrutiny and serve as a vital defense.
5. Determine Appropriate Action
The stakes are high when determining appropriate action for employee misconduct. Disciplinary actions depend on the employee’s history and the severity of the offense and can range from a verbal warning, written warning, suspension or dismissal from work. It is critical that HR teams carefully determine the appropriate actions to address employee misconduct to prevent any accusations of retaliation. If an employee feels that the action taken for their misconduct offense is unnecessarily severe, they could potentially bring retaliation accusations against the company, which is why it’s critical to thoroughly investigate and document the findings before making a final decision.
6. Communicate with Involved Parties
Communication is key to successful issue resolution. It’s important to let everyone involved know that you will look into the claim and explain what they can expect about the process. Be sure to ask them if they have any questions and reassure them that you are taking the necessary steps to achieve a suitable outcome for all parties.
Forms of Employee Misconduct That Can Result in Termination
While simple or general misconduct usually takes the route of monitoring behavior and progressive discipline, up to and including termination, serious or gross misconduct can result in an employee’s immediate termination.
Types of behavior that may warrant immediate termination include sexual assault or harassment, workplace violence, endangering employees or the company, theft of real or intellectual property, major insubordination and discrimination.
Since most employees are “at will,” there is little recourse via legal action for an employee to fight being terminated, unless the reason is illegal under state and/or federal regulations.
Employee Relations in the Workplace
It is the job of the employee relations or human resources team to create a safe environment for employees to report employee behavior that rises to the level of misconduct or is a violation of company policy, knowing that they will be taken seriously and that there won’t be any retaliation.
Employee relations should establish a number of ways for reporting to take place, including:
- Talking to a supervisor
- Reporting directly to the employee relations or human resources team
- Anonymous hotline/tip line
The employee needs to understand that the report of misconduct will be held in the strictest confidence, unless or until an investigation is warranted and the reporting employee needs to be investigated along with the subject of the misconduct. Under no circumstances should the employee reporting the misconduct be subject to any type of retaliation or abuse by any other employee, especially the one being reported for misconduct.
Employee misconduct spans the range from simple misconduct to gross misconduct. Employee relations and human resources should be prepared to handle all types of misconduct with policies, processes, procedure and the right technology in place to document the issue and respond with the proper level of disciplinary action.
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