Employee Misconduct

Behavioral misconduct typically involves violations of workplace etiquette and professional standards. This includes chronic tardiness, the use of profanity, or a direct refusal to follow a lawful directive from a supervisor (insubordination). While these may seem minor, a pattern of unchecked behavioral issues creates a "hostile work environment" that can lead to broader institutional liability. We assist employers in documenting these infractions to build a cumulative record that justifies termination for cause.

Gross Misconduct refers to actions so severe that they warrant immediate termination without the need for progressive discipline. This includes physical violence, the use of illegal substances on-premises, and sexual harassment. Furthermore, financial crimes such as embezzlement or the unauthorized disclosure of trade secrets fall under this category. For these high-stakes violations, the disciplinary record must be unassailable, as the former employee is likely to challenge the decision to preserve their eligibility for unemployment benefits or to seek litigation.

A defensible investigation must follow a standardized protocol:

• Appointment of an Impartial Investigator: Utilizing an internal HR professional or outside counsel who has no direct involvement in the incident.
• Evidence Preservation: Securing emails, Slack logs, security footage, and financial records immediately to prevent spoliation.
• Witness Interviews: Conducting structured interviews with both the accuser and the accused, ensuring that all statements are contemporaneously recorded.
• Confidentiality and Anti-Retaliation: Implementing strict measures to protect participants and prevent claims of whistleblower retaliation.

One of the most delicate aspects of managing misconduct is determining the status of the accused employee while the investigation is ongoing. Placing an employee on "administrative leave with pay" is often the safest tactical move, as it removes the potential for further misconduct or witness interference without providing the employee a basis for a "constructive discharge" claim.

For non-gross misconduct, a Progressive Discipline framework is recommended. This typically includes a verbal warning, a written warning, a final warning, and then termination. By providing the employee with a "notice and opportunity to cure," the employer demonstrates a good-faith effort to maintain the employment relationship. This documentation is essential when defending against claims at the Equal Employment Opportunity Commission (EEOC) or state labor boards.

When termination is necessary, the meeting must be handled with clinical professionalism. The employer should provide a clear, concise reason for the termination based on the investigative findings and avoid unnecessary editorializing that could be used as evidence of "animus." We advise our clients to provide a final paycheck and a summary of post-termination obligations (such as non-compete or non-disclosure agreements) to ensure a clean legal break.

The most common "trap" in misconduct cases is the retaliation claim. If an employee reports a safety violation or harassment and then is subsequently investigated for unrelated misconduct, the timing creates a "temporal proximity" that suggests a retaliatory motive. SJKP LLP specializes in decoupling the misconduct from any protected activity, proving that the disciplinary action was inevitable based solely on the employee's behavior.

Employers must be cautious about how they characterize an employee’s departure to third parties or other employees. Statements that an employee was fired for "theft" or "harassment" can trigger defamation lawsuits if the investigation results were not absolute. We implement "neutral reference" policies and strict internal communication protocols to ensure that the details of the misconduct remain confidential and protected by qualified privilege.