There are many different definitions of insubordination, and acts of subordination carry different degrees of severity. It is important to crack down on insubordination and stick to the policies in your employee handbook. By following the policies to the letter, you protect your company against discrimination and wrongful termination claims.
What Is Insubordination?
There are three factors in insubordination:
- The employee was given a directive or order
- The employee understood what was expected of them
- The employee does not perform the task or otherwise refuses to obey the order
A signed employee handbook will be a good piece of evidence in an insubordination case.
Failure to Perform
If an employee ignores a command or refuses to execute a duty in their job description, then this is called failure to perform. An employee is permitted to address any legal or ethical concerns, but they must have a conversation with the employer rather than just refusing to follow orders. If the employee expresses legal or ethical concerns or concerns for their health then they are not obligated to follow the order.
Harassment or Intimidation
Employers must have a zero-tolerance policy for harassment or intimidation. Any instances of harassment and intimidation must be investigated thoroughly and dealt with swiftly. The employee handbook must outline the harassment and intimidation policy and what the disciplinary action will be.
Confrontational Actions
People are allowed to have different opinions, however, confrontation in a public setting is bad for workplace morale. Insubordination can include spreading rumors, defamation, and regular inappropriate comments. Any confrontational acts need to be recorded as often they need to be a regular occurrence to be grounds for termination. Where possible, include written evidence in the employee’s file and written evidence of any disciplinary actions.
Abusive Language
Swearing isn’t considered insubordination. However, swearing is unprovoked and directed at a supervisor or manager as a result of their words or actions then this is considered insubordination. Employers should note the insubordination, but also consider that the heat of the moment is a significant factor. One-time occurrences should not be disciplined harshly. Regular occurrences may be considered insubordination.
When Is Insubordination Grounds for Dismissal?
The discipline for insubordination should depend on the regularity and severity of the offense. A thorough employee handbook should outline a disciplinary structure for insubordination and clearly outline when insubordination becomes a dischargeable offense. Here are some of the most common types of insubordination and if they are grounds for dismissal.
Physical Assault
Workplace violence or physical assault is grounds for immediate dismissal. The event must be documented immediately and the police should be called when the event occurs. It is vital to take a strong stand against workplace violence to protect your employees.
Verbal Abuse
Insults, profanity, and other forms of verbal abuse are not grounds for dismissal unless it is a regular occurrence. If the language occurred due to “shop talk,” then the language may not have been intended to offend. If the insubordination was provoked by a supervisor or manager verbally abusing employees, then the employee’s verbal abuse is not grounds for dismissal. In fact, the manager should undergo retraining or probation to address the inciting incident.
Refusal to Perform
Refusing to follow a direct order or “unreasonable delay in completing work” can be counted as insubordination. As explained above, special consideration must be taken to discover if the employee did not understand the instructions, or if they expressed any legal or ethical concerns. Every issue must be documented in the employee’s file to identify if there is a pattern.
Discipline For Insubordination
For non-physical insubordination, the behavior must be corrected immediately. It is important to take a set of disciplinary steps for non-physical insubordination, like probation and performance reviews. Dismissal should be reserved for physical insubordination or repeated acts of insubordination.
The California Employment Development Department set forth a guideline when insubordinate employees may be discharged from employment.
How to Deal With Insubordination
Your company needs to set up a clear policy to deal with insubordination so managers and HR can deal with it in the same manner. Here are some tips for dealing with insubordination.
Call a Meeting
Address the insubordination in a private meeting with the employee. Do not fight with the employee in front of other staff members and create workplace gossip. Calling a meeting and giving time for all parties to cool down will help to get all the details of the issue.
Listen to the Employee’s Side
It is important to find out the background details of the situation. To do this, you must listen to the employee without interrupting. Ask any questions needed to probe for more details.
Tell the Employee Their Behavior Is Unacceptable
Be clear with the employee that their behavior will not be tolerated and the consequences for their action. If possible, work with the employee to address the issue and offer retraining if appropriate. Tell the employee what the consequences will be for future acts of insubordination and remind them of the relevant policies.
Build a Positive Relationship With Employees
The best way to prevent insubordination is to create a positive workplace and build a good relationship with your employees. By doing these things you remove a reason for insubordination. Check on the behavior of your managers and retrain any managers who are causing any low morale.
Discipline the Employee
All employees must be disciplined as per the relevant policy. If the policy says to give the employee a warning, then give them a clear warning of what the consequences will be for repeated actions. Do not let an employee off lightly or be harsher on an employee than the policy calls for. That can open the door for discrimination claims.
California Law on Cause for Disciplining an Insubordinate Employee
California Government Code 19572 set forth factors for Disciplining an Insubordinate Employee. The statute states:
Each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list:
(a) Fraud in securing appointment.
(b) Incompetency.
(c) Inefficiency.
(d) Inexcusable neglect of duty.
(e) Insubordination.
(f) Dishonesty.
(g) Drunkenness on duty.
(h) Intemperance.
(i) Addiction to the use of controlled substances.
(j) Inexcusable absence without leave.
(k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.
(l) Immorality.
(m) Discourteous treatment of the public or other employees.
(n) Improper political activity.
(o) Willful disobedience.
(p) Misuse of state property.
(q) Violation of this part or of a board rule.
(r) Violation of the prohibitions set forth in accordance with Section 19990.
(s) Refusal to take and subscribe any oath or affirmation that is required by law in connection with the employment.
(t) Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person’s employment.
(u) Any negligence, recklessness, or intentional act that results in the death of a patient of a state hospital serving the mentally disabled or the developmentally disabled.
(v) The use during duty hours, for training or target practice, of any material that is not authorized for that use by the appointing power.
(w) Unlawful discrimination, including harassment, on any basis listed in subdivision (a) of Section 12940, as those bases are defined in Sections 12926 and 12926.1, except as otherwise provided in Section 12940, against the public or other employees while acting in the capacity of a state employee.
(x) Unlawful retaliation against any other state officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of, the Attorney General or any other appropriate authority, any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related to the job.