Legalities Of Insubordinate Employees – What To Know
Once you offer any employee a contract, there is an implied expectation for mutual trust and confidence. So, when insubordination occurs at work, it logically makes sense that termination is the first thing that crosses your mind.
Besides, you cannot risk keeping an insubordinate employee because the threshold for loss is high – lost trust and morale among workers, no respect for authority figures, and damaged employee engagement. You cannot risk harming your working culture, data integrity, and productivity.
Still, keeping your head while you navigate the steps for legally terminating an insubordinate employee is your margin of safety. Think about it, the legal implications of summary dismissal can result in lost time defending your actions in court and making massive buyout payments at the expense of your company's cash flow.
Not to mention, a bad reputation threatens your buy-in capacity, be it from investors, customers, or top-talent employees. So, no matter how justified your reasons are, first, plead your case through proper investigation and documentation, seek legal counsel, and look for better disciplinary actions before deciding on termination. This is how you can do that:
Get Down the Brass Tacks of Insubordination
Top of mind, insubordination occurs when your employee refuses to follow a supervisor's instruction or directive intentionally and after acknowledgment. By and large, there is more to insubordination than meets the eye.
For example, company policies, HR laws, and employee rights protect some instances of insubordination. Say a supervisor gives employees instructions that violate the company policy. In that case, any employee who refuses to adhere to the orders is not insubordinate.
Certain laws also protect employees from insubordination, like when they act under collective action. OSHA and the government equally protect whistleblowers. Additionally, the Occupational Safety and Health Administration protects employees accused of insubordination if the work or the instructions provided put the employees' health in danger.
Therefore, you must determine the realities of individual incidences before citing insubordination. For example, if cursing is commonplace at your office, then a cursing employee is not insubordinate.
Behaviors of insolence (verbal intimidation, cursing, mocking, eye-rolling, and argumentative behaviors) are also insubordinate: they are especially critical because, if left unchecked, they become a cancer that slowly infects your workplace, thus, altering the supervisor's ability to manage or lead.
Notwithstanding, issues like insolence are not clear-cut. And in other cases, employees might act insubordinate because of underlying problems like stress, unfavorable working conditions, or pushing back against unfair treatment.
Let this be an incentive to pursue other solutions other than termination. Keeping that in mind, these are the steps to terminate an insubordinate employee legally.
Steps of Legally Terminating an Insubordinate Employee
Step 1: Investigate
When cases of insubordination are challenged legally, the employer is asked to prove that a direct order was issued, which the employee received and understood. The employer is also requested to show that the employee refused to obey through nonperformance or a statement of refusal.
Therefore, your first step should be to determine whether insubordination occurred and how severe it is – remember to document everything. Start by assessing how the order was issued (orally, face to face, or written) and who gave the order. Was the order appropriate?
Then determine whether the employee understood the order (were the instructions clear, what would compliance look like?). Look for evidence of refusal (were there witnesses in this case?) to strengthen your case.
If there is evidence of refusal, check whether the employee communicated about it with plausible reasons (in this case, the insubordination is likely a pushback). In instances of insolence, determine the impact of the insubordinate behavior.
Finally, if there is evidence of insubordination, confirm that the employee is well-versed in your office policies. Additionally, check their records to determine whether this is a first-time offense or repeat behavior.
Step 2: Conduct a Hearing
At this juncture, it would be myopic to determine a disciplinary action without talking to the employee first. Remember, the goal is to focus on fairness and problem-solving more so than termination – unless it is absolutely necessary.
So, talk to your employee to determine the root cause of their actions. Listen actively without judgment, be objective, and offer your support. You might find that differing orders from different managers or bulk work are causing unexpected stress among your workers or that your new HR laws are daunting.
Or maybe your mid-level manager is championing his team, and what they think is pushback comes off as insubordination. And before formally starting the hearing, give your employee a notice.
Address their right to have a representative in the hearing; it could be a witness from work or a trade union representative. And finally, be mindful of the fact that your employees are fallible.
Step 3: Outline the Consequences
Use what you learn in the hearing to determine the best cause of action based on the policies in the employee's contract, HR laws provided, or the company's disciplinary policy. Typical disciplinary outcomes in order include:
- Verbal warning
- First written warning
- Final written warning
- Termination
For instance, if the employee refuses to follow orders for the first time and your policies dictate that termination is only tenable after the third offense, settle on warning them.
However, serious insubordination that causes irreparable damages warrants summary dismissal. Examples include fraud or theft, physical violence, and tarnishing the business name in the media.
But even when gross misconduct is evident, never act outside the governance of your company policies. Always objectively deal with insubordination at work. Once you arrive at a decision, document it, and notify the employee at your earliest convenience.
The written document should clearly outline the facts of the case and the reasons that justify your decision. If the final decision is to terminate, ensure you give the employee ample notice per your HR laws.
Aim for Prevention
Insubordination is bound to happen in any working environment. Therefore, be proactive and work on prevention by setting clear limits (make this especially clear for insolence, subtle sabotage, and avoidant behavior since they are not apparent behaviors).
Use a progressive discipline model, one that documents multiple instances of rebellion before arriving at termination. Listen to your employees' concerns and follow ethical standards and company policies.
And remember, mistakes happen, and employees have reasons for acting insubordinate. And unless you have addressed these issues before, your goal should be to work with the employee to rectify their challenges.
Consequently, this protects you from lawsuits later because insubordination is wrought with claims from both sides. And the law can protect employees from cases of insubordination. That said, always aim to terminate an insubordinate employee legally.
Once you offer any employee a contract, there is an implied expectation for mutual trust and confidence. So, when insubordination occurs at work, it logically makes sense that termination is the first thing that crosses your mind.
Besides, you cannot risk keeping an insubordinate employee because the threshold for loss is high – lost trust and morale among workers, no respect for authority figures, and damaged employee engagement. You cannot risk harming your working culture, data integrity, and productivity.
Still, keeping your head while you navigate the steps for legally terminating an insubordinate employee is your margin of safety. Think about it, the legal implications of summary dismissal can result in lost time defending your actions in court and making massive buyout payments at the expense of your company's cash flow.
Not to mention, a bad reputation threatens your buy-in capacity, be it from investors, customers, or top-talent employees. So, no matter how justified your reasons are, first, plead your case through proper investigation and documentation, seek legal counsel, and look for better disciplinary actions before deciding on termination. This is how you can do that:
Get Down the Brass Tacks of Insubordination
Top of mind, insubordination occurs when your employee refuses to follow a supervisor's instruction or directive intentionally and after acknowledgment. By and large, there is more to insubordination than meets the eye.
For example, company policies, HR laws, and employee rights protect some instances of insubordination. Say a supervisor gives employees instructions that violate the company policy. In that case, any employee who refuses to adhere to the orders is not insubordinate.
Certain laws also protect employees from insubordination, like when they act under collective action. OSHA and the government equally protect whistleblowers. Additionally, the Occupational Safety and Health Administration protects employees accused of insubordination if the work or the instructions provided put the employees' health in danger.
Therefore, you must determine the realities of individual incidences before citing insubordination. For example, if cursing is commonplace at your office, then a cursing employee is not insubordinate.
Behaviors of insolence (verbal intimidation, cursing, mocking, eye-rolling, and argumentative behaviors) are also insubordinate: they are especially critical because, if left unchecked, they become a cancer that slowly infects your workplace, thus, altering the supervisor's ability to manage or lead.
Notwithstanding, issues like insolence are not clear-cut. And in other cases, employees might act insubordinate because of underlying problems like stress, unfavorable working conditions, or pushing back against unfair treatment.
Let this be an incentive to pursue other solutions other than termination. Keeping that in mind, these are the steps to terminate an insubordinate employee legally.
Steps of Legally Terminating an Insubordinate Employee
Step 1: Investigate
When cases of insubordination are challenged legally, the employer is asked to prove that a direct order was issued, which the employee received and understood. The employer is also requested to show that the employee refused to obey through nonperformance or a statement of refusal.
Therefore, your first step should be to determine whether insubordination occurred and how severe it is – remember to document everything. Start by assessing how the order was issued (orally, face to face, or written) and who gave the order. Was the order appropriate?
Then determine whether the employee understood the order (were the instructions clear, what would compliance look like?). Look for evidence of refusal (were there witnesses in this case?) to strengthen your case.
If there is evidence of refusal, check whether the employee communicated about it with plausible reasons (in this case, the insubordination is likely a pushback). In instances of insolence, determine the impact of the insubordinate behavior.
Finally, if there is evidence of insubordination, confirm that the employee is well-versed in your office policies. Additionally, check their records to determine whether this is a first-time offense or repeat behavior.
Step 2: Conduct a Hearing
At this juncture, it would be myopic to determine a disciplinary action without talking to the employee first. Remember, the goal is to focus on fairness and problem-solving more so than termination – unless it is absolutely necessary.
So, talk to your employee to determine the root cause of their actions. Listen actively without judgment, be objective, and offer your support. You might find that differing orders from different managers or bulk work are causing unexpected stress among your workers or that your new HR laws are daunting.
Or maybe your mid-level manager is championing his team, and what they think is pushback comes off as insubordination. And before formally starting the hearing, give your employee a notice.
Address their right to have a representative in the hearing; it could be a witness from work or a trade union representative. And finally, be mindful of the fact that your employees are fallible.
Step 3: Outline the Consequences
Use what you learn in the hearing to determine the best cause of action based on the policies in the employee's contract, HR laws provided, or the company's disciplinary policy. Typical disciplinary outcomes in order include:
- Verbal warning
- First written warning
- Final written warning
- Termination
For instance, if the employee refuses to follow orders for the first time and your policies dictate that termination is only tenable after the third offense, settle on warning them.
However, serious insubordination that causes irreparable damages warrants summary dismissal. Examples include fraud or theft, physical violence, and tarnishing the business name in the media.
But even when gross misconduct is evident, never act outside the governance of your company policies. Always objectively deal with insubordination at work. Once you arrive at a decision, document it, and notify the employee at your earliest convenience.
The written document should clearly outline the facts of the case and the reasons that justify your decision. If the final decision is to terminate, ensure you give the employee ample notice per your HR laws.
Aim for Prevention
Insubordination is bound to happen in any working environment. Therefore, be proactive and work on prevention by setting clear limits (make this especially clear for insolence, subtle sabotage, and avoidant behavior since they are not apparent behaviors).
Use a progressive discipline model, one that documents multiple instances of rebellion before arriving at termination. Listen to your employees' concerns and follow ethical standards and company policies.
And remember, mistakes happen, and employees have reasons for acting insubordinate. And unless you have addressed these issues before, your goal should be to work with the employee to rectify their challenges.
Consequently, this protects you from lawsuits later because insubordination is wrought with claims from both sides. And the law can protect employees from cases of insubordination. That said, always aim to terminate an insubordinate employee legally.
Legalities Of Insubordinate Employees – What To Know
Elton Mwangi
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