Employee Misconduct: Disciplinary Action or Immediate Termination?

Deciphering whether an employee's misconduct warrants discipline or termination can be tricky, especially if your blood is boiling. 

Although your company may have an outlined schedule of progressive discipline, different situations may warrant different consequences – and inconsistency with consequences from person to person may appear discriminatory. Add to that the complexities of human feelings and emotions, and suddenly you’re reconsidering your choice of profession. 

To complicate things further, employment contracts require employers to execute the disciplinary actions outlined in the employment contract, whereas at-will employment allows the employer to, generally, discipline or terminate an employee for almost any reason. 

While there is no one-size-fits-all consequence for every behavior, there are several situations that may require corrective action versus some that may warrant immediate employee termination. 

Understanding Disciplinary Actions 

Disciplinary actions are measures taken by an employer to address employee misconduct, poor performance, or violations of company policy. The primary goal of disciplinary action is to correct the behavior, not to punish the employee.  

Employers must ensure that disciplinary actions are fair, consistent, and in compliance with employment law. This approach not only helps in maintaining a positive employment relationship but also protects the company from potential legal issues. Addressing misconduct effectively can lead to improved employee performance and a more harmonious workplace. 

The two primary forms of disciplinary action are progressive discipline (aka corrective action) and termination. 

Progressive Discipline 

The most common type of disciplinary action includes progressive discipline where a graduated process deals with problems related to an employee’s conduct or performance. It involves a series of steps, from verbal warnings to written warnings, suspension, and termination - although not all steps have to be followed consecutively in every situation. 

The goal of progressive discipline is to provide employees with an opportunity to correct their behavior and improve their performance. This method ensures that employees are given fair chances to address misconduct and align with company expectations before more severe actions are taken. 

1. Investigation 

Prior to disciplining an employee, you should conduct an investigation into the alleged misconduct or poor performance. This step is crucial to gather all relevant facts and ensure that any action taken is based on accurate information. 

2. Verbal Warning 

A verbal warning is an informal disciplinary action where you address an employee’s misconduct or performance issue. It serves as a first-step correction, clarifying expectations and consequences if the issue persists. This is typically the first warning that signals the need for improvement before formal disciplinary measures are taken. 

HR best practices would suggest you document that a verbal warning was given, then place the documentation in the employee's file. 

3. Written Warning 

A written warning is given at a formal disciplinary meeting and documents an employee’s misconduct or performance issues. It outlines the unacceptable behavior, expected improvements with a performance improvement plan, and potential consequences if issues persist.  

Both you and the employee should sign the written warning. Make a copy of the warning and include it in the employee's file to serve as an official record of corrective action before further disciplinary steps are taken. 

4. Suspension 

Suspension is where an employee is temporarily removed from work due to misconduct, policy violations, or performance issues. It can be paid or unpaid and serves as a serious warning.  

Employee suspension is not a necessary step for corrective action, but may be important if a more thorough investigation is needed to consider further disciplinary action. Suspension acts as a more severe warning and gives the employee time to reflect on their actions. Be sure to document the suspension and include it in the employee's history. 

5. Termination of Employment 

Termination is the final step in disciplinary action where a worker's employment is permanently ended due to severe misconduct, repeated violations, or failure to improve after prior warnings. It follows due process to ensure fairness, including investigations and documentation. Termination protects your workplace standards and reinforces company policies and expectations. 

Purpose of Progressive Discipline 

You must follow a fair and consistent disciplinary process to ensure that employees are treated equally and that the company is protected from potential lawsuits and frivolous unemployment claims. Be sure that all disciplinary actions are documented and that employees are provided with an opportunity to appeal any disciplinary decisions. This thorough approach helps in maintaining transparency and fairness in the disciplinary process. 

Immediate Dismissal 

Immediate employee termination is a disciplinary action that ends a worker's employment without notice or warning. This type of disciplinary action is usually reserved for serious offenses, such as gross misconduct, theft, or violence in the workplace. Immediate dismissal is a critical step that underscores the severity of the employee’s misconduct and the company’s commitment to maintaining a safe and ethical work environment. 

General *examples of poor conduct that may result in progressive discipline: 

• Inappropriate removal or possession of property 
• Substance abuse (this may warrant immediate dismissal when specified in your company policy and/or if being under the influence compromises the safety of the employee and/or others) 
• Boisterous or disruptive activity in the workplace 
• Negligence or improper conduct leading to damage of company, customer, or co-workers’ property 
• Minor insubordination or other disrespectful conduct 
• Dress code violations 
• Violation of safety or health rules 
• Employee intimidation or minor violation of anti-harassment 
• Any absence without notice 
• Unauthorized use of telephones or other company equipment 
• Unauthorized disclosure of confidential information 
• Violation of personnel policies 
• Unsatisfactory performance of job duties or conduct 
• Minor discourtesy to a customer, vendor, or the general public resulting in a complaint or loss of goodwill

Most of the examples above would enter the corrective action process for first infractions, whereas a repeated offense may warrant the next level of progressive disciplinary action, up to and including termination. Disciplinary actions may include verbal, written, and final warnings prior to termination. Again, it is not necessary to include all of these actions in all instances.  

General *examples of poor conduct that may result in immediate dismissal: 

• Refusal or failure to follow directions from management or insubordination 
• Breach of confidentiality relating to employer, employee, customer or vendor information 
• Altering, damaging or destroying company property, its records, or another employee's property 
• Dishonesty or theft 
• Falsification of records, including employment application, benefits forms, timekeeping, expense reimbursement forms, and similar records 
• Providing false or misleading information to any company representative 
• Fighting or engaging in disorderly conduct on the company's or a customer's premises or off-site while representing the company 
• Threatening violence in the workplace 
• Violations of any of the company's employment policies including, but not limited to, confidentiality, security, solicitation, insider trading, conflict of interest, and code of conduct 
• Conduct or performance issues of a serious nature 
• Sexual harassment or other unlawful behavior 
• Possession, manufacture, sale, transfer, distribution, or use of alcohol or illegal drugs in the workplace, particularly when representing the company or while operating employer-owned vehicles or equipment 
• Failure of a drug or alcohol test 

*Neither list of examples is intended to be all-inclusive. This is generally for at-will employment and for informational purposes only. None of the examples should be construed as legal advice. 

Again, every workplace scenario is different. If not currently included in your employee handbook, consider outlining your corrective action policy to help with consistency and reserve the right to take any disciplinary action you consider appropriate at any time. 

Will an Employee Who Is Fired Qualify for Unemployment Benefits? 

Employees terminated for gross misconduct or repeated offenses should not qualify for employer-paid unemployment benefits. However, if an employee is fired from your company, then is hired at another organization and then laid off, your company may be included in the look-back period to determine culpability for employer-paid unemployment benefits.  

Be sure to document all employee disciplinary actions in personnel files to help you respond to future unemployment claims. See the video below for more details.

Need Help? Contact Stratus HR 

If you are uncertain of how to handle your particular situation, please contact your certified HR expert and/or seek legal counsel. Also, never make any employment decisions when you are angry! 

Here at Stratus HR, we can help you navigate the complexities of employee misconduct and the subsequent decisions for disciplinary action or termination. With our expert HR guidance, clear policy recommendations, and emphasis on consistent and fair practices, we ensure you are equipped to handle challenging situations with confidence. Do not let the intricacies of HR decisions overwhelm you; book a free consultation with one of our HR experts.