In an ideal world, employees will adhere to the handbook, common sense, government, industry regulations, and laws. Unfortunately, humans are not computers, and the behavior of individuals can vary wildly. Add in stress, social pressures, the influence of alcohol, or various other factors, and you have a recipe for misconduct.
Misconduct can take place in the workplace, or it can take place outside of it. An employee’s behavior often reflects on their employer, and it’s up to you to handle their misconduct professionally. Here’s how to do it with a minimum of issues along the way.
Bear in mind, of course, that the best-laid plans rarely survive contact with real-life situations. Use these tips as a guideline, but be aware that you may need to adapt to changing circumstances on the fly.
#1: Define Misconduct in Workplace Policies
The first thing to do is to ensure that you have policies in your employee handbook that define what constitutes misconduct.
Misconduct is generally divided into two categories: gross and general.
- General misconduct is behavior that is not illegal, but may be immoral or, most often, disrespectful. Rude comments, discourteous behavior, insubordination, chronic tardiness, and other such issues fall under general misconduct. General misconduct is most often where you need to define the boundaries within your handbook, because different organizations and cultures can view different actions at varying levels of severity.
- Gross misconduct, meanwhile, is misconduct that is generally grounds for immediate termination of the offending employee. It’s often, though not always, illegal. For example, theft and fraud, embezzlement, property damage, assault, sexual harassment, and drug abuse can all be forms of gross misconduct.
Gross misconduct can often be defined simply as illegal activities, but you may want to include more specific definitions for certain behaviors. The line drawn for sexual harassment may be more or less strict, for example, and general “offensive behavior” can vary as well. Additionally, misconduct like a violation of safety protocol may not be strictly illegal, but endangering the safety of other employees is a severe offense.
You’ll want to make sure you have definitions for misconduct that are publicly available and that all employees are made aware of them to avoid issues with penalizing employees for policies they had no idea existed.
In general, minor misconduct should result in a verbal warning and documentation. A written, formal warning is warranted if it’s too severe for a mere verbal warning, or if the employee has already been warned. For even more severe misconduct or for employees who have been written up before, you may need to enforce suspension or mandatory training for the issues. Finally, for illegal activities, activities that harm the company or your other employees, or other forms of gross misconduct – as well as when an employee has already been suspended before – termination becomes the final option, short of criminal charges.
#2: Develop a Process
Many workplaces implement a “three strikes” policy for less-severe misconduct, usually general misconduct. That allows otherwise-good employees to adjust their behavior, particularly in instances where cultural mores vary. For example, what one group might consider playful banter might be more disparaging or insulting to another. Issuing warnings for those kinds of misconduct can allow the offending employees to adjust their behavior, make amends, and improve their standing.
At the same time, you will want clauses that define stricter penalties for irreparable conduct. For example, if an employee is caught sexually harassing someone, violating criminal laws, or committing fraud against or on behalf of the company, a warning is generally not enough to suffice. The penalty should suit the crime. Zero-tolerance policies are essential for misconduct that warrants such actions.
Another defined part of your process should be expectations for employees who witness misconduct. Are they expected to report incidents, and if so, in what fashion and to whom? When management receives allegations, what do they do? This should be defined.
#3: Remain Vigilant for Adverse Impact
One of the most challenging aspects of handling misconduct is avoiding adverse impact, disproportionate action, and unfair treatment in the workplace. It’s all too common for higher-up management to cut their friends slack when they would immediately terminate a lesser employee for the same action. It’s also distressingly common for minority employees to be punished more severely for similar actions that don’t receive as much repercussion in majority employees.
That is why having clear policies and a clear process already in place is critical. It helps ensure that you treat your entire workforce fairly and helps you avoid the legal repercussions of discriminatory behavior.
#4: Gather Information
The key to any misconduct incident is to gather information about allegations, no matter the situation. Issuing punishment based on one employee’s word may not be enough to provide accurate testimony of an incident.
In some cases, gathering information may be as simple as interviewing several employees and collecting their stories. In other cases, you may need to pull security camera footage, interview outside parties, or verify critical details of a situation. You may even hand off the investigation to law enforcement in extreme cases.
“If an impartial internal investigation isn’t possible, you should get a third party to conduct a fair and unbiased employee misconduct investigation. This is also important if you don’t have a trained workplace investigator on board. Furthermore, if you’re dealing with a complex, potentially time-consuming complaint, it might also be a good idea to consider an external investigator.” – AIHR.
Generally, you will want to have a preliminary action in place, such as putting the offending employee on leave while you investigate. You may also need to take measures to prevent them from hiding their trail, like temporarily suspending access to computer systems. In any case, unless the evidence is unambiguous and the misconduct is severe enough, it’s usually not ideal to make a snap judgment.
#5: Provide Secure Communications Channels
A common problem with misconduct in the workplace, especially if it comes from administration or higher-level management, is that the people in charge of handling reports are the people conducting themselves improperly.
Thus, any company seriously intending to handle misconduct properly must have two things:
- A way for employees (and outsiders to the company, as necessary) to report misconduct, potentially anonymously, to avoid repercussions.
- More than one person with the authority to pursue allegations.
This way, your employees won’t find themselves in positions where reporting harassment threatens their job or the only recourse to report to is the person who behaved improperly.
#6: Address Root Causes
This one is important. Sometimes, in the case of general misconduct, there are underlying reasons that you can solve by providing more support to your employees.
For example, if an employee is chronically tardy, it may be due to inflexible childcare obligations. Providing a childcare stipend, offering flexible hours so long as the appropriate amount of work is completed, or even offering partial remote work on days when they cannot find childcare can all be good options.
Similarly, if an employee has problems with substance abuse, mental health, or similar issues, you may invest in support networks and access to therapists as part of employee benefits. After all, it’s often better to assist someone with their problems than to exacerbate them through termination for reasons like addiction or mental health struggles.
#7: Maintain Records
Employees who have a history of minor misconduct may not warrant immediate termination, but they can become a liability over time. The longer they are allowed to persist in misconduct, the more they will have a suppressive effect on other employees’ morale, productivity, and loyalty.
Maintaining records of past issues helps you see any history of previous misconduct if a new allegation arises. This is where multiple warnings and strikes come in. If you have previously issued a verbal warning for misconduct, it may be time to escalate to a written one. If you have issued a written warning, you may escalate to disciplinary action such as mandatory sensitivity training. If previous severe punishment has been issued and another incident occurs, termination is likely on the table.
#8: Be Ready for Damage Control
Global culture is swiftly growing more connected and more aware of the behavior of individuals. More importantly, culture has shifted towards holding companies responsible for the conduct of their employees.
The days of saying “what they do when off the clock is none of our concern” are over. Instead, it’s now expected that misconduct outside of the workplace will reflect upon the employer, and the actions the employer takes further reflect on their reputation.
If allegations come in, especially from outside sources, be prepared to make a statement about the issue and that you’re investigating it. Likewise, be ready to discuss policies and disciplinary action based on the outcomes of your investigation. You may very well need to defend your company, which can extend to terminating problematic employees for the good of the business.
#9: Know When to Escalate
Escalating beyond an employment decision and to potential criminal investigations may be necessary in certain circumstances. It’s virtually never the case for general misconduct, but certain kinds of gross misconduct may warrant it. For example, assault, fraud, theft, and other law violations can result in termination followed by legal proceedings.
That said, this option should not be held as a threat. It’s simply a reality that exists in the case of misconduct that warrants it.
It may also be beneficial to know local agencies for investigations, such as a computer forensics company, in the case of more serious investigations.
#10: Understand Laws for Termination
Depending on where you’re located, you may have different laws regulating terminating an employee. Unless you’re in an at-will state and can terminate an employee at any time for any reason, you may need to consult with an employment lawyer and ensure that you have justification for a fair termination.
A fair termination requires reasonable belief and evidence of gross misconduct, proof of a thorough investigation into the matter, and legal justification for the termination.
“Because of this significant legal hurdle for instances of termination, it’s critical that you take detailed notes at each stage of the process. That will ensure that you give all employees due process and have a clear history or records that support your disciplinary decision.” – Recruitee.
The last thing your company needs, after all, is a protracted lawsuit for wrongful termination.
#11: Minimize Instances of Misconduct
As with many problems, reactionary solutions are often worse than proactive solutions. Ongoing training for your employees can help keep them aware of what is and isn’t acceptable in the workplace regarding behavior and general misconduct. Likewise, maintaining awareness of company policies helps keep people aware of where the line is, and any changes to those policies should be announced.
More importantly, your company culture should be inclusive, proactive, and aimed to minimize undue conflict. You may need to invest in training for leadership, communication strategies, and other frameworks for reducing the chances of misconduct in the first place.
#12: Be Consistent
Above all else, when handling employee misconduct allegations, consistency is crucial.
You’ll need to be consistent in acknowledging allegations, investigating potential issues, and meting out penalties according to the misconduct’s type, degree, and severity. Hesitation, favoritism, and “cutting some slack” for good behavior; these all show up as discriminatory or adverse practices.
The more you can define in advance, and the more you can offload in documentation, forms, and impartial processes, the more consistent your handling of incidents will be.
Misconduct doesn’t always have to result in immediate termination, but the enforcement of policies should be consistent, no matter whether it’s a new hire, an old hand, an entry-level worker, an executive, or anyone in between.
Navigating the complex waters of employee misconduct can be a daunting task for any employer. From defining what constitutes misconduct to ensuring consistent enforcement of policies, it’s a multifaceted challenge that requires a delicate balance between fairness and firmness.
The key lies in preparation, understanding, and consistency. By defining clear misconduct policies, developing systematic processes, and ensuring equitable treatment across the board, businesses can handle these situations professionally and maintain a positive workplace environment. Remember, every incident of misconduct offers an opportunity for growth and learning.
Ready to create a more harmonious workplace? Contact us today to foster a positive work culture and ensure you’re equipped to handle any challenge. Let’s build a better workplace together!
Page updated on November 1, 2023.