HR Mavericks

Eddy’s HR Mavericks Encyclopedia

Employee Misconduct
“They did what?!” Does your stomach sink when you prepare for conversations with misbehaving employees? Find support for one of the most difficult HR tasks here.

What Is Employee Misconduct?

Employee misconduct occurs when an employee knowingly or unknowingly breaks policies such as:
  • Daily matters such as attendance or dress code
  • Acceptable behavior as it relate to company culture
  • Risking their own safety or the safety of those around them
  • Zero tolerance actions that result in immediate termination

Why Is It Important to Manage Employee Misconduct?

Though it may be a difficult task, the consequences of not managing misconduct effectively are much worse.
  • It'll get worse. A lack of response emboldens employee misconduct, and it is likely to increase over time.
  • Productivity. Not responding promptly to issues is likely to decrease productivity and can even result in a dangerous situation.
  • Fairness. If employees understand they are all being treated consistently, they are more likely to accept the consequence of their actions.
  • Legal consequences. Managing employee misconduct can prevent claims of discrimination or other illegal conduct.
  • New hire expectations. Teaching this process to new hires shows them what behavior is acceptable and what to expect if they violate these standards.

Common Types of Employee Misconduct

Employee misconduct can take many forms; let's look at a few most common.

Harassment

The US Equal Employment Opportunity Commission defines harassment as ...unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Harassment can happen between employers and employees or between employees. When it involves explicit or implicit sexual associations, it becomes sexual harassment.

Discrimination

According to the Department of Labor, “Discrimination generally exists where an employee treats an applicant or another employee less favorably merely because of their race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. It may also occur if an employer disciplines, terminates, or takes unfavorable actions against an employee or job applicant for discussing, disclosing or asking about pay. Discrimination can be against a single person or a group.”

Theft or Fraud

Whether it is stealing product from the shelf, a colleague's lunch from the breakroom, committing time-card fraud, or sleeping on the job, theft or fraud is often deemed a zero tolerance act of misconduct and can lead to immediate termination of employment.

Substance Abuse

The use of a substance that can impair an employee’s judgment, clarity of thought, or functioning ability is substance abuse. Coming to work under the influence of or using substances on the job are all forms of workplace substance abuse.

Workplace Violence

The Center for Disease Control defines workplace violence as “the act or threat of violence, ranging from verbal abuse to physical assaults directed toward persons at work or on duty. The impact of workplace violence can range from psychological issues to physical injury, or even death.”

Tips to Prevent Employee Misconduct

These tips will give you a great starting point to creating a positive workplace.

Clear Guidelines on Acceptable Behavior and Culture

The company needs a clear set of acceptable behavior guidelines and rules that are upheld and modeled by leadership. Your employee handbook is the backbone of employee discipline, as it defines your expectations and outlines the disciplinary process. This will help prevent misconduct and negative sub-cultures within the company culture from emerging. Create a policy in partnership with senior leadership. The Society of Human Resource Management (SHRM) offers a template to get you started on creating one for your organization.

Incentivize Positive Behavior

Incentivize and reward leaders and employees who set a positive example. These rewards can range from prizes or other recognition for individual circumstances to a long-term employee recognition system as part of your strategy to retain employees.

Monitor Behavior

Autonomy and trust in your organization is important to the productivity and satisfaction of employees. Nevertheless, if there is not a system in place you will be liable for unethical behavior. Here are a few common examples of monitoring systems you might consider.
  • Open-door policy. Although this is more preventative than monitoring, an open-door policy is a great place to start. Make it known that any employee who has a work-related issue can approach their supervisor or any senior leader to discuss it.
  • Security cameras. An open warehouse with products on open shelves may deal with damage or theft. A security system with cameras will quickly pinpoint the cause of any problem. Be careful to only place them in public areas of the company; placing cameras in bathrooms, mothers’ rooms, or private offices may be seen as an invasion of privacy and could be illegal, depending on your location.
  • GPS tracking. Construction companies that rely on employees driving company vehicles to the worksite can benefit from GPS tracking. This can help identify delays in service without invading the privacy of the employee and customer.
  • Software. Online retailers can track productivity with software that tracks the time between scanning products when fulfilling orders. The main concern is establishing a manageable expectation without causing employee burnout.
  • Information technology. Any company with office space will benefit from IT support to track sites employees visit on company computers. Partner with your IT team to learn what is in place currently or if you can provide support to implement this safeguard. This helps verify attendance and productivity concerns with employees.

How to Address Employee Misconduct

Each step of addressing misconduct is a topic in itself. See links to HR Encyclopedia articles and other sources to help you grasp this process.

Step 1: Conduct Thorough Investigations

Take any accusation or instance of misbehavior seriously. The Society of Human Resource Management (SHRM) has provided a checklist to guide you through the investigation process.

Step 2: Discipline Employees for Misconduct

If the company has determined and defined zero tolerance actions and the employee has violated that policy, then the next step is simple: terminating their employment. If they brought a weapon to the office or came under the influence of substances, you need to quickly conduct the investigation and deliver the termination. Why? They threaten the safety of everyone around them, including themselves. For other types of misconduct, you will need to follow your company's process for progressive discipline to match the consequence to the severity of the misconduct.

Step 3: Correction, Not Punishment

Your goal is to correct the behavior rather than punish the employee for the behavior exhibited. As you partner with leaders to deliver discipline, some may want to punish immediately, and you can coach them that we are here to correct the behavior according to the terms of our progressive disciplinary policy. Let's look at an example: Dan stole Stephen’s water bottle from the break room. This is his first issue of misbehavior.
  • Punishment: “Dan, we have video surveillance of you taking Stephen’s water bottle. As a consequence, you are no longer allowed water during working hours.”
  • Correction: “Dan, we have video surveillance of you taking Stephen’s water bottle. At this company, every employee is expected to respect each other and their possessions. Please return Stephen’s water bottle and respect other employees.”

Step 4: Keep Records

Bits of evidence, transcripts of conversations, and anything else you use to make each decision on disciplinary action must be documented. If your actions should come into question by the executive or senior leadership team or the employee brings charges of discrimination or wrongful termination, you will be glad you have good records.
Complying with employment law helps prevent claims of discrimination or unlawful conduct against your organization as a result of employee discipline.

The Americans with Disabilities Act (ADA)

The ADA prohibits discrimination of employees and candidates with disabilities. If you discipline an employee with a disability for not complying with a policy or not meeting productivity standards, but you haven't provided them proper accommodation to do so, you are breaking the law.

The Civil Rights Act of 1964

The Civil Rights Act is a federal law that prohibits private employers with 15 or more employees from discriminating against individuals on the basis of race, sex, religion, or nationality. Let's say a manager, Jon, is disciplining his employee, Shanita, who has been accused of stealing from the company. He is treating her differently from the rest of the team because of her race/ethnicity. John should be focusing on performance results or policies, not on the employee’s race/ethnicity, when disciplining employees.

The Family and Medical Leave Act (FMLA)

This law provides 12 weeks of job protected leave to employees for specified medical reasons. Employees qualify for this when they have been employed at your company for one year and have worked 1,250 hours. Example: Lauren is expecting a baby any day now. She is looking forward to taking 12 weeks of leave granted to her by the Family Medical Leave Act, as it is getting painful to move around the office. She is meeting with HR to go over the FMLA paperwork. Lauren is confident it will be approved because she has been with the company for 18 months and has worked well over the 1,250 hour requirement. Amanda, the HR representative, explains that her request for FMLA has been denied because she doesn’t believe Lauren deserves the 12 weeks of leave due to Lauren's failure to complete a customer order correctly. Amanda needs to review the FMLA requirements, because they clearly describe the requirements as being with the company for one year and having worked a minimum of 1,250 hours. Misconduct is not an excuse to revoke an employee’s leave if they meet those requirements.

The National Labor Relations Act (NLRA)

Laws are also in place to prevent employers from perceiving some actions as punishable misbehavior. This law protects the rights of employees to organize themselves and participate in collective bargaining. If Company A is dealing with a group of employees who have organized themselves due to unsafe working conditions, they may not punish those employees explicitly or implicitly for doing so. To protect the company from legal liability, company leaders should never Spy, Promise, Interrogate, or Threaten (remember the acronym SPIT) in response to employees exercising their right to organize themselves.
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Ryan Archibald

Ryan Archibald

Ryan is an HR Director with four years of experience and three masters degrees. One accomplishment he is proud of is the design and launch of a learning and development program for 800+ employees.
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Frequently asked questions
Other Related Terms
Arbitration
Employee Conflict Resolution
Employee Grievance
Employee Relations Case Management
Employee Suspension
Employee Write-Ups
Employee/Office Gossip
Employment Litigation
Progressive Discipline
Workplace Bullying
Workplace Investigations
Workplace Mediation
Workplace Retaliation
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