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Employee Relations: Dealing with Employee Misconduct in the Workplace

Jul 12, 2022
HR Acuity

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 define 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 moreshutterstock_1486821704 serious misconduct such as sexual harassment, violence, all types of discrimination and theft of or damage to company property.  

Simple Misconduct 

Some examples of simple misconduct include: 

  • Rude comments made to a co-worker or superior 
  • Tardiness  
  • Unexplained or frequent absences 
  • 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 

Some examples of gross misconduct include: 

  • Violent behavior or making threats to commit violent behavior 
  • Theft or fraud (i.e., padding expense account, stealing equipment) 
  • Alcohol/substance abuse at work 
  • Sexual harassment/sexual assault 
  • Bullying 
  • 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. 

Investigating and Addressing Employee Misconduct 

While simple or general misconduct can often be addressed with a verbal or written warning and then monitored for any additional incidents, gross misconduct requires much more decisive and immediate action. 

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.  

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. 

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-part 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. 

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. 

Learn more about HR Acuity’s SaaS technology solution that can help employee relations team to document and address employee misconduct. Sign up for a Curiosity Tour here. 

Additional Resources 

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