Employee Misconduct, Discipline, and Termination: Five FAQs for Employers

Employee discipline to address misconduct or poor performance can raise significant legal and operational questions for employers, particularly when termination is involved.  While appropriate disciplinary polices can vary based on the needs of an employer, such policies should always be applied in a consistent and objective manner.  Employment and Labor Law attorney Daniel Aquino addresses five common issues that arise for employers when administering disciplinary action.

1. What are examples of misconduct or poor performance that might call for immediate termination?

General examples of misconduct potentially warranting immediate termination include, but are not limited to, the following:

• Violence or threats of violence in the workplace
• Harassment or unwanted touching of a sexual or otherwise unlawful nature
• Fraudulent or intentionally dishonest conduct, including theft of company property
• Use of alcohol or illegal drugs in the workplace
• Violations showing reckless or intentional disregard for health and safety
• Major breaches of company policy, with particular respect to ethical obligations or confidentiality of trade secrets and intellectual property

Additional Tips: Whether circumstances justify immediate termination depends on the specific workplace and industry.  Employers also should account for regulations and standards of conduct applicable to specific professions, which may include heightened safety standards, duties of care (e.g., for healthcare providers), or licensing requirements.  Similarly, collective bargaining agreements may limit or expand the situations in which immediate termination is appropriate.  Generally, immediate termination may be appropriate where an employee demonstrates such disregard for safety, professionalism, or employer policies that the employee cannot be allowed to remain in the workplace.  As opposed to misconduct, a single incident of poor performance (i.e., unintentional mistake or failure to perform) can often be an opportunity to coach an employee on appropriate performance standards.  However, whether a single incident of poor performance warrants an immediate termination can vary based on the industry and needs of the employer.

2. What are examples of misconduct or poor performance that might call for progressive discipline?

General examples of singular incidents warranting progressive discipline include, but are not limited to, the following:

• Tardiness or absence 
• Failure to adequately perform job duties due to inexperience or lack of training
• Minor incidents of offensive or disrespectful language
• Minor or unintentional violations of company policy

Additional Tips: While progressive discipline will often be warranted in singular instances of misconduct or poor performance, appropriate disciplinary action depends on the specific workplace and industry.  Generally, situations that can be addressed with counseling or coaching warrant progressive discipline, rather than immediate termination.

3. Is past performance a factor when deciding whether to discipline or immediately terminate an employee?  Can a “star performer” be given additional leeway?

In the context of misconduct severe enough to require immediate termination, it is a best practice to disregard past work performance.  Stated differently, a substantiated instance of misconduct severe enough to justify immediate termination means that the individual is detrimental to the employer and workplace, even if the employee is a “star performer.”  Conversely, if an instance of misconduct is minor enough to warrant only progressive discipline, an employer should not view this as an opportunity to terminate an average or poor performer, while retaining high performers who engage in similar conduct.  Failure to issue discipline for misconduct in a consistent manner increases the risk of confusion or perceived unfairness in the workplace.  At worst, inconsistent discipline can lead to incorrect assumptions that an employer has treated employees differently on an unlawful basis.

4. What immediate steps should be taken during immediate termination?

While an immediate termination for misconduct moves quickly by nature, employers should follow standard procedures for separations as closely as possible, including ensuring the grounds for the termination are well-documented and preserved.  Critical steps include the following:

• Immediately halt the terminated employee’s access to email and other internal systems (particularly important for workers with remote access)
• Advise payroll representatives of the termination promptly to ensure compliance with applicable laws governing timing of the final payment of wages to the employee
• Maintain confidentiality of the investigation into the misconduct

5. What are the most important principles employers should follow when administering discipline or termination?

To be prepared to respond to any incident of misconduct, an employer should create and implement a disciplinary policy.  At-will employers have wide latitude to fashion strict or lenient disciplinary policies depending on business needs and the particular industry.  Management, human resources, and all employees should be required to familiarize themselves with the policy.  The policy should be applied to all employees in an objective and uniform manner.  Finally, all incidents of misconduct and discipline should be documented in writing.

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Media Contact

Mark Buckovich

mbuckovich@mcdonaldcarano.com
702.257.4559

Daniel I.
Aquino

Of Counsel Employment & Labor LawCo-Chair daquino@mcdonaldcarano.com Phone702.257.4565 V-Card PDF (Print) Learn More »