Celebrating 75 Years of Serving Nevada’s Legal, Business, Government, and Civic Communities

Employee Misconduct, Poor Performance, Discipline, and Termination in the Workplace

The Importance of Employee Disciplinary Policies

In an article published in the Las Vegas Sun and Las Vegas Weekly titled “Businesses ignore importance of employee disciplinary policies at their own peril,” Employment and Labor Law attorney Daniel Aquino discusses three of the most common and challenging situations employers face when addressing poor performance or misconduct — determining when employee misconduct potentially justifies immediate termination, determining how and when to administer progressive discipline, and evaluating whether to treat a top performer differently from other employees in the context of misconduct. 

Dan’s article is provided below and can also be viewed in the Las Vegas Sun and in Las Vegas Weekly

“Businesses ignoring the importance of employee disciplinary policies do so at their own peril,” Las Vegas Sun/Sept. 12 and Las Vegas Weekly/Sept. 8-14, 2022

Over the past two years, increased demand for labor has magnified the importance of employee retention for all businesses. While employers have intently focused on recruiting and retaining employees through competitive compensation and benefits, employers who ignore the significance of appropriate disciplinary policies do so at their own peril. Failing to maintain an appropriate workplace environment can result in an inability to retain workers, inefficient operations, and even liability for employment-related claims. All of these can spell disaster for the bottom line.

When handling poor performance or misconduct in the workplace, management and human resources must make difficult personnel decisions. While there is no “one size fits all” approach to employee discipline, addressing poor performance or misconduct raises the following three common challenges for employers, particularly when termination is involved. 

  1. Determining when employee misconduct potentially justifies immediate termination
  2. Determining when and how to administer progressive discipline
  3. Evaluating whether to treat a “star performer” differently from other employees in the context of misconduct.  

Examples of Workplace Misconduct or Poor Performance that May Warrant Immediate Termination

General examples of poor performance or workplace 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
  • Demonstrates disregard for safety, professionalism, or employer and business policies

Whether circumstances justify immediate termination depends on the specific workplace and industry. Employers should account for regulations and standards of conduct applicable to their specific business or profession, which may include heightened safety standards, duties of care (e.g., for healthcare providers), or licensing requirements.

Examples of Misconduct or Poor Performance that May Warrant Progressive Discipline

As opposed to misconduct in the workplace, 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 or progressive discipline can vary based on the industry and the employer’s needs.

General examples of singular incidents of employee misconduct or poor performance 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

Appropriate disciplinary action can also depend on the specific workplace and industry. Generally, situations that can be addressed with counseling or coaching warrant progressive discipline, rather than immediate termination.

Top Performers Should Not Be Treated Differently

A frequently asked question is whether a “star performer” can be given additional leeway. It is best practice to disregard past work performance in the context of workplace misconduct severe enough to require immediate termination.  An instance of misconduct severe enough to justify immediate termination – such as an act of violence or sexual assault – means that the employee is harmful to the business, even if the employee is a “star performer.” A valuable contributor’s benefit can be outweighed by a single employment-related claim or lawsuit, which can incur hundreds of thousands of dollars in legal fees and liability. The potential liability increases if an employer previously failed to address the employee’s misconduct. Further, the “hidden” impact of such an employee on workplace morale and employee retention can be equally detrimental to an employer’s bottom line.

Conversely, suppose an instance of misconduct is minor enough to warrant only progressive discipline. An employer should not view this situation 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 the workplace 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 discriminated against employees on an unlawful basis.

Maintaining an appropriate workplace environment starts and ends with consistently enforcing standards for workplace conduct. At-will employers in Nevada have wide latitude to fashion strict or lenient disciplinary policies depending on business needs and the particular industry. While appropriate disciplinary policies can vary based on the needs of an employer, such policies should always be applied to all employees consistently and objectively including documenting in writing all incidents of discipline or misconduct and maintaining confidentiality of any investigation into misconduct.



About McDonald Carano

In 2024, McDonald Carano celebrates 75 years of serving Nevada’s legal, business, government, and civic communities. More than 60 lawyers and government relations professionals serve state, national, and international clients from our offices in Reno, Las Vegas, and Carson City. McDonald Carano provides legal services and government affairs and advocacy counsel to startups, corporations, trade associations, nonprofits, public entities, high-net-worth individuals, investors, and public-private partnerships throughout Nevada. We are proud to be your Nevada law firm since 1949.

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