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WHAT IS MISCONDUCT?

By August 25, 2022September 21st, 2022Blog

One of the most commonly misunderstood reasons for termination is misconduct. In this article, we are going to explain how a state may define misconduct and what employers need to document to prove misconduct occurred in the workplace.

Case law defines misconduct as “a substantial or intentional disregard of the employer’s interests. The deliberate nature of the act is a critical component of the definition.” This is important because the burden of proof is on the employer to show that the actions were intentional or substantial enough to cause harm to the employer.

Please note that not all states define misconduct in the exact same manner and may not distinguish between simple and gross misconduct. The states make the determination that misconduct occurred based on the documentation that is supplied.

Simple Misconduct

Simple misconduct is defined as work related conduct that is in substantial disregard of the employer’s interest. A general rule of thumb is that simple misconduct cases are ones that warrant a change in behavior by the employee but usually do not result in immediate termination.

Some common examples of simple misconduct include insubordination, chronic tardiness or absenteeism, inappropriate or rude comments to co-workers or customers, or misrepresenting job application data. The burden of proof in these unemployment cases is on the employer to prove two things:

  • The actions of the employee are a deliberate and willful disregard of the employer’s interests.
  • At least one prior warning was provided to the employee.

Warnings Are Important

The reasons for prior warnings are an important part of proving misconduct. States typically require that at least one warning for the specific behavior be issued to prove simple misconduct. For example, if an employee has received a warning for tardiness and is then discharged for not following safety standards, the state will likely not consider this misconduct because the initial warning is not the same as the reason for discharge.

Employers who keep detailed records have better odds of winning misconduct cases. Ideally, when warnings are issued they should:

  • Clearly list the unacceptable behaviors
  • Provide actions or recommendations for improvements
  • Outline the specific standards that need to be achieved
  • Be in writing and signed by both the employee and the employer

If there is a dispute over warnings, the employee’s signature on the warning provides the state with clear evidence that they have received the warning and were aware of the actions they needed to take. When the warnings are incomplete or vague in nature, they seldom meet the burden of proof the state is looking for to prove misconduct.

Gross Misconduct

There is often a fine line between simple misconduct and gross misconduct. Generally speaking, gross misconduct refers to severe negligence or willful conduct that is violent, unlawful, or has the potential to severely harm your business. These cases can be so harmful to the employer, the state may deny benefits to employees who have not received previous warnings.

Some examples of gross misconduct may include:

  • Fighting or making violent threats in the workplace
  • Stealing or vandalizing company property
  • Falsifying personal information or work history
  • Sexual harassment or creating a hostile workplace for other workers

The same need for written documentation exists in gross misconduct cases. Documentation should include:

  • How you learned of the misconduct
  • If you did not witness the incident, statements from the witnesses including the details of what happened
  • Proof that a reasonable investigation into the incident was conducted
  • Proof that the termination was in line with a reasonable response to the incident

Is This Misconduct?

Equally important as knowing what is considered misconduct is knowing what types of things will not be considered misconduct. Case law states that “inefficiency, unsatisfactory conduct, failure in performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgement or discretion” are not considered misconduct.

Some real-life examples of what would not be considered misconduct:

  • A lack of skill or ability to do the job
  • Performance issues such as not performing fast enough or careful enough
  • A difference in work habits
  • An argument between an employee and the employer
  • An unintentional error
  • A temporary lapse in good judgement
  • A single incident – unless it is an extreme case such as arson

In these cases, the employee can still be terminated for their actions, but the states will not consider this to be a misconduct case.

Did You Know?

Employees terminated for gross misconduct are not eligible for COBRA according to the US Department of Labor’s COBRA guidelines?


The above information was provided by our friends at Thomas & Company.

(Image by @toefotofreepik from Freepik)

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