What is misconduct in the workplace?
Misconduct, by definition, describes employee behavior that’s inappropriate for the workplace and negatively impacts the employee’s work, environment or peers. Misconduct can range from minor issues to serious breaches of company policy. Some types of misconduct can be corrected through training and one-on-one discussions; others require a firm response such as immediate termination.
Resolving misconduct promptly is essential for protecting employees, promoting teamwork, upholding best practices and avoiding litigation. Managing misconduct reflects your values as a leader and impacts the company’s mission.
Examples of misconduct in the workplace
Professional misconduct can take many forms. Some of the main types of workplace misconduct are:
Many employees agree to protect trade secrets and confidential client information as part of their employment agreement. Sharing private information about finances, business practices and customer relationships is a breach of that agreement and an example of misconduct. Confidentiality breaches are especially serious in the health care field, due to Health Insurance Portability and Accountability Act guidelines about who can access patient information and medical details.
One example of misconduct related to confidentiality is the private use of business contacts. If a sales associate uses the company database to find a customer’s phone number and saves it to their personal phone, that’s inappropriate misconduct and a confidentiality breach.
Insubordination occurs when employees refuse to follow orders and fulfill their duties. Many examples of insubordination have fairly minor consequences and can be corrected. Insubordination becomes more serious if it involves employees ignoring health and safety protocols. Examples of insubordination can include:
- Being consistently late to work
- Refusing to collaborate with coworkers
- Skipping required meetings
- Using inappropriate language
For example, if an employee regularly leaves for their scheduled lunch break and takes twice the amount of allowed time, it could be considered insubordination. If their manager reminded them about company policy or gave them a warning, any further extended lunches could be grounds for disciplinary action.
Unbalanced workplace relationships can also be defined as misconduct depending on company policy. If someone in a position of power starts dating an employee who works under them, it could make that manager and the company vulnerable to a harassment claim. Subordinates may feel pressured to go along with advances from their supervisor to protect their job, leading to inappropriate coercion. Favoritism can be another form of misconduct if an employee gets preferential treatment because of their personal relationship with a manager.
Inter-office relationship policies
Some companies have policies that ban inter-office romance because of the possibility for misconduct, while others allow employees to date if they disclose their relationship to HR through the proper channels. For example, if a manager started a relationship with an employee and they informed HR of their relationship, the company might transfer one of the employees to a different department as a way to mitigate the possibility of misconduct.
Harassment and discrimination
Bullying and sexual harassment are considered serious workplace misconduct. Harassing behaviors result in a hostile work environment, which violates the terms of Title VII of the Equal Employment Opportunity Commission and can result in legal action. Several laws protect employees from hostile conduct based on protected classifications, which may include:
Harassment can be direct or indirect. For example, if an employee touches another employee inappropriately, that is direct sexual misconduct in the workplace. If two coworkers are having an inappropriate sexual discussion or make lewd jokes, anyone who hears their conversation and feels uncomfortable or targeted has grounds for a third-party harassment claim.
As an employer, team leader or manager, it’s important that every complaint or accusation of harassment be taken seriously and fully investigated. If one employee is causing another employee to feel uncomfortable due to unwanted advances, bullying, or discriminatory behavior, it is your responsibility to hear all sides and take the appropriate actions moving forward.
Theft or fraud
Stealing from a company or its customers, defrauding clients or improperly using company funds for personal use are forms of serious misconduct and can be a detriment to a company’s external reputation and internal culture.
For example, if a waiter changes tip amounts on customer receipts to increase their earnings, this is fraudulent misconduct that could result in expensive back-charges against the business. Theft can be as minor as taking home office supplies or as egregious as stealing money from the company safe.
Being under the influence on the job is a serious case of misconduct. Intoxicated employees can put themselves and others in danger and risk a company’s reputation. If an employee keeps drugs or alcohol on them in the workplace, that can also be considered misconduct.
General misconduct vs. gross misconduct
In the workplace, misconduct can be classified as general misconduct or gross misconduct. General misconduct is usually unintentional, not malicious, has limited effects on other people and can be handled through disciplinary procedures. Gross misconduct is a severe infraction that can result in immediate termination of an employee. Gross misconduct is often illegal or a serious breach of company policy.
For example, an employee who made a rude comment to an angry customer has likely committed general misconduct. If that employee then threatens the customer and instigates a physical altercation, the action becomes gross misconduct.
Unless you live in a right-to-work state, your business may have to prove that you fired an employee for a legitimate reason. Employers have the burden of proof for documenting firings related to gross misconduct. Whether a misconduct offense is serious enough to warrant dismissal is open to interpretation, making it especially important for employers to define misconduct and have clearly stated discipline policies in their employee handbooks.
How to address workplace misconduct
If you receive a report of misconduct or witness it, follow these steps to address the problem professionally:
1. Act quickly
Deal with misconduct in a timely manner to limit your liability as an employer for the offending employee’s actions. Not acting when you become aware of misconduct could result in employees thinking that their behavior is okay and committing further infractions. Delaying an investigation can allow a hostile work environment to develop and make any possible victims of misconduct feel disrespected.
Gather testimony from everyone involved in the misconduct allegation and review any physical evidence. In cases of harassment, ask the employee making the complaint to create a written timeline of each incident, beginning with the date the harassment started. If you are close to someone who is accused of misconduct, consider forming a review board to handle the investigation objectively. While you investigate, you may want to take interim action, such as a temporary paid suspension or transfer to another position.
3. Document evidence
Write down every part of your investigation, including the initial report, the investigation plan, employee testimony, video recordings and other evidence. Have someone else in the room with you while interviewing employees and witnesses to create a clear record of accountability in case their testimony contradicts other evidence. Even after the investigation concludes and the situation is resolved, keep the records in your company files to demonstrate a consistent and fair discipline policy.
4. Consult with leadership
Get advice from others on your leadership team before making a decision about whether to reprimand an employee and what the consequences should be. This can help you from making a biased decision and provide more company buy-in for how the situation is handled.
5. Consider the severity of the offense
Consider how serious the act of misconduct was and its impact on the workplace. If other employees or customers were directly hurt by the action, the consequences should be more severe to reflect your company’s values, affirm priorities, and show other employees that you’re committed to maintaining a welcoming and healthy workplace culture. Review employee records to determine if this is part of a pattern of misconduct or a small mistake that could be corrected through administering appropriate consequences.
6. Decide on consequences
Make a decision about your disciplinary response to the misconduct. Review how you responded to misconduct in the past and seek guidance from official employee policy. If you are in an unfamiliar situation regarding a serious case of misconduct, consider consulting with a lawyer to make an informed decision that protects you and your employees.
7. Communicate with involved parties
Clearly communicate with the employee being disciplined about how you plan to resolve the situation. it may also be appropriate to inform victims of misconduct of the disciplinary measures you plan to take. Answer any questions they have and prepare to justify your decision.
Disciplinary responses to workplace misconduct
While gross misconduct should usually result in an employee being immediately fired, lesser offenses can instead trigger a standardized warning process. Common disciplinary responses to misconduct in the workplace include:
Managers commonly give employees a verbal warning before officially going on the record to report misconduct, meaning they talk to the offending employee to explain company policy, then create an improvement plan if relevant. A verbal warning alerts employees that there is an issue and gives them a chance to correct it. Some employees may not even realize they have committed misconduct; a verbal warning helps them address the behavior.
Written warnings are the common next step after verbal warnings if employee behavior does not change. Written warnings are more serious and should be filed in an employee’s records. In the written warning, explain the employee’s behavior or actions and what policy they violated, then state the next steps you’ll take if the behavior continues. It’s up to you to determine how many written warnings you’ll give before proceeding to direct consequences. It’s also a good idea to have the employee sign and date the written warning; this way, should the situation continue to escalate, you have a record showing that the employee understood the consequences for continued inappropriate behavior.
Employees can also be put on a probation period where their actions are closely monitored by their employer. They may have to sign a form acknowledging why they’re on probation. Probation typically lasts for 60 or 90 days, and can be subject to extension if an employee doesn’t show improvement.
You can also suspend employees from a specific project, remove certain privileges, or even suspend them from coming to the workplace entirely. If you are suspending an employee during an investigation, explain what your expectations are while they’re suspended. They may have to meet with human resources or complete certain kinds of work from different locations.
Firing an employee is usually the last resort for employers trying to correct a behavioral issue. In cases of gross misconduct, dismissing the employee may be the only appropriate action for your business. Document how you informed the employee of their termination and file it with HR.
Spotting misconduct at your business
Regular performance reviews and staff meetings can help you catch misconduct before it becomes a serious issue. Getting to know your employees builds trust and allows you to have an inside perspective on behavior patterns. Strong leaders are aware of how employees spend their time and possible challenges to a healthy workplace dynamic. They also keep other company leaders accountable and hold them to the same high standard of behavior.
Be clear with your employees about how they can confidentially report harassment or discrimination. Growing your human resources department allows you to develop the right policies for your business, supervise employee behavior and lead more effectively.
Dealing with employees who are wrongfully accused of misconduct in the workplace
In certain cases, an employee may be wrongfully accused of misconduct when no actual misconduct has taken place. This can happen for a variety of reasons, ranging from simple miscommunication to intentional sabotage. Whatever the situation may be, it’s just as important to investigate the claims of the employee who believes they were wrongfully accused as it is when investigating an accuser’s claims.
For example, if an employee makes a false statement against another employee and that employee is dismissed based solely on the accuser’s claims, this can open the door for potential legal action taken against the employer if the accused can prove they were wrongfully terminated. The best way to avoid wrongful termination complaints is to remain unbiased throughout your investigation and make sure that both the accuser and the accused are treated equally when determining whether or not misconduct occurred.
FAQs about workplace misconduct
What are the main types of employee misconduct?
The main types of misconduct are offensive behavior, damage and theft, unsafe behavior and general policy infractions.
What is simple misconduct?
Simple misconduct is a negative workplace behavior that an employee commits intentionally and refuses to correct. In some circumstances, simple misconduct prevents employees from collecting some of their unemployment benefits after being dismissed.
What are some examples of misconduct at work?
Some examples of workplace misconduct include misusing a company credit card, using inappropriate or explicit language, and ignoring workplace safety measures, such failing to wear protective equipment on a construction site or failing to wash hands before handling food in a restaurant.
What is considered a firing offense?
Firing offenses vary from workplace to workplace. Some employers have more strict standards for employee behaviors than others. Examples of common firing offenses include:
- Negligence of safety procedures
- Falsified qualifications
- Chronic absenteeism
Can an employer re-hire an employee who was previously fired for misconduct?
In most cases, if an employee was fired for gross misconduct such as theft or other illegal activities, an employer cannot re-hire the terminated employee. In the event that an employee was wrongfully terminated for misconduct and the employer concludes that there was no misconduct on the former employee’s part, they can re-hire the employee if they choose to do so.
What steps can employers take to prevent misconduct in the workplace?
While there is no way for employers to predict whether new hires or even seasoned employees will behave inappropriately, they can take some proactive steps to promote a positive work environment and supportive culture among employees. Implementing systems such as employee/supervisor check-ins, online anonymous reporting systems, and company hotlines for reporting harassing behavior and other violations are also helpful solutions for preventing and stopping workplace misconduct.