Define Misconduct

[Agility Dog]

What is the name of your state (only U.S. law)? WA
If an employee (who works unsupervised) is told by a manager to specifically do a job that is outlined in the job description and is one they have been doing for 13 months and they choose to do something else instead... leaving the job undone and making the employer pay a second employee to do the same work - does this qualify for misconduct?

 

[racer72]

It would in my book. Also, unless you are covered by a union contract, almost anything can be considered misconduct and can be used to fire someone. Wearing the wrong colored shoelaces can be considered misconduct.

 

[pattytx]

It would in my book. Also, unless you are covered by a union contract, almost anything can be considered misconduct and can be used to fire someone. Wearing the wrong colored shoelaces can be considered misconduct.

You understood that question?

 

[commentator]

The behavior you describe can be categorized as "misconduct" in that the employee directly disobeyed a supervisor's order, which can also be called "insubordination." It could also be "poor job performance" which falls into the realm of misconduct because the employee knew how to perform the task, had successfully performed the task in the past, and deliberately chose to not do the task, or not do it correctly at that particular time.

Misconduct always implies control of one's actions, a conscious decision to do what is defined as the "wrong" thing, (either by general principle, as in punching out the supervisor or stealing job materials, or by the company's policies and/or handbook, which defines failure to follow the safety practices or something as misconduct) if one wants to keep a job. For example, violating a safety rule or using drugs and causing or having an on the job accident could be considered misconduct. No rules violated, something happened, no misconduct.

But of course, misconduct is a valid concept in unemployment insurance decisions, not in other employment situations. If the employee is terminated, the employer must prove there was a valid job related misconduct reason or the person can receive unemployment insurance. As it was pointed out, in most cases, the employer can chose to fire for any reason, can define wearing the wrong color shoelaces as misconduct if they want to.

 

[pattytx]

Perhaps it's similar to the definition of what is is.

 

[Agility Dog]

Re: Define misconduct

Thank you all. This is my first UE issue ever. A few more questions, please:
1. After employee was specifically told to do the job, the job was not done (employee admits she did not do it but now says the manager told her not to the work which is untrue). The hours to do the job were recorded and submitted for payment by employee. Could this also qualify as dishonesty in regards to time sheet fraud?
2. Employee states she had no idea she could lose her job for choosing to not do the work (specifically after what her Manager told her to do). She was employed for 13 months and time sheets show where she DID do the work over and over again. Does this type of misconduct require multiple written warnings?

 

[ecmst12]

If she was doing ANY work at the time, then the time sheets are correct and she is of course entitled to payment for that time. Even if it's not the specific work you wanted her to do.

Yes, you can fire her. However she has a decent chance of getting unemployment if you do. Misconduct must be WILLFUL to disqualify from unemployment, and the burden is on the employer to prove the willfulness. That's why at least one written warning is usually given before termination, unless the offense was really serious, or they don't care about the employee getting benefits.

 

[commentator]

If this is an issue concerning unemployment insurance eligibility, I would not try to use "falsifying of payroll records" or submitting a false request for pay. Because if she was on the clock, and she HAD been told not to do the job by her supervisor, even so, she would not have been taken off the clock. If he told her to clock out and leave instead of doing the job, and she chose to stay there, then it would still be more insubordination than time sheet fraud.

Frankly, I do not think, if this is the first offense, and if there are no prior documented disciplinary offenses of this nature, that this "rises to the level of" a firing for misconduct type offense.

I think the person would probably be approved for U.I., because she will maintain that this was a misunderstanding, that she had been told not to do the job. And your word and hers will have equal weight. Even if the supervisor testified he did not say it, she would say she misunderstood what he was telling her, that she had no idea her job was in jeopardy, and that she had no prior warnings or write ups about this type of behavior.

So give her one. If your business has a prescribed chain of discipline, eg oral, written, suspension, termination, begin her progressive discipline. Even if she denies she did it, you can give her a warning about it. Keep these records. Your goal, of course is to make sure the behavior is not repeated, more so than to punish.

If the behavior does continue, then you will have a trail of warnings and attempted correctons of the behavior, and can terminate her without repercussions to you. It will be, of course, her choice to re-offend or not.

 

[ecmst12]

Sounds like OP already fired her though, and she's now applying for benefits

 

[Agility Dog]

re: define misconduct

Yes, she has been terminated. One more piece of info.
After admitting she did not do the work, she became defensive and issued verbal attacks to the manager as well as myself. She demonstrated escalating aggressive behavior. We have a Zero Tolerance policy in our handbook stating employees who act agressively towards coworks or dogs will be immediately terminated. She admits to having the handbook.
Had she calmly discussed her insubordination, maybe we could have worked through it. But this time she demonstrated behavior not seen before and was of enough concern to prevent her from continuing employment. Termination was not without consequence for me as an owner.
I guess what I'm saying is she was disgruntled and acted with enough anger to concern me if she continued with access to the business.
Based on what has happened after the fact, I still don't think I made the wrong decision. I was uncomfortable with allowing her another chance to do something that might hurt my business/clients.

 

[commentator]

Based on what we've got here, I'm pretty sure the person was approved for benefits. Nothing she did after being told she was being....well, let's just say that if she cursed or raised her voice or something, even threatened to punch someone out, or did punch someone out, you might be able to press charges, but for unemployment purposes, they'd stick basically to the reason she was called in in the first place. Losing perfect composure while being disciplined does not mean she has now violated a major misconduct statute and can then automatically be fired without being approved for benefits. But if you really felt uncomfortable with her, it'll probably be worth it.

Progressive, clearly delineated disciplinary procedures are the way to go. Oral warning for the smallest violation of what is considered acceptible. Follow through to next level, written warning. Then termination for the next incident. Of course if you have in your policy book that acting aggressively toward animals or co-workers is considered misconduct, and you rather clearly define "acting aggressively" (is it raising the voice at all, yelling, calling them names, issuing threats, physically striking them with hand, choking them with a leash, throwing things at them?) then a person who does this can probably be terminated for misconduct with the first incident.

Failure to follow a directive by a supervisor, the first time it happens, is probably not going to fall into the misconduct category.