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August 07, 2017 in HR, Compliance

HR Reporting: Avoid Pitfalls in Misconduct Policies

Having a policy in your employee handbook which deals with misconduct — and lists examples of misconduct — requires caution, sensitivity and careful wording. Professional HR services can aid you in developing this wording.

If you’ve decided it’s important to tell your employees certain acts and behaviors are not welcome in your workplace, then you need to put your policy in writing. This is the only way to both protect yourself and prevent an HR incident from occurring.

Once you’ve decided written policies are needed, you have to deal with these questions: What are our misconduct and discipline rules? Do we spell out examples of misconduct in a list? Every word in the employee handbook counts towards giving a clear answer.

How to Craft Your Employee Handbook

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A list of misconduct examples is a PITFALL for you, if you don’t include some disclaimers and qualifying statements. This is because, if you don’t include such language in your policy, an employee can argue wrongful termination if you discharge the employee in a manner or for a cause not explicitly stated in your policy. The statements listed below protect your “employment-at-will” rights.

1. You'll need an introductory statement, something like this:

“There is no effective method of predetermining the seriousness or effect of any one violation of employer policy or of making an exhaustive list of all possible violations of policy. However, the following examples of misconduct are listed for the guidance of all employees.”

2. You'll need a qualifying statement, something like this:

“This list is not intended to be a comprehensive list of all prohibited activity, only a list of examples of conduct which may result in discipline. THIS LIST IS NOT ALL-INCLUSIVE.”

3. You'll need a disclaimer, something like this:

“Although some violations may be more severe than other violations, repeat violations, or a combination of violations, may result in termination of employment. The employer reserves the right to take any disciplinary action, including suspension or termination, in all cases it deems appropriate. If an employee engages in behavior which the employer considers detrimental to the interests of the employer, or threatens the well-being of other employees or patrons, the employer may terminate the employee immediately.”

How to Create a Misconduct List

Start by sitting down with your management staff and supervisors. We definitely recommend bringing in your HR department or whoever manages your HR software. Come up with a list of the most common kinds of misconduct you’ve experienced. Then consider these common examples of workplace misconduct:

Timekeeping Incidents

  • Habitual failure to accurately record work time.
  • Unexcused absenteeism or tardiness.
  • Taking more than the specified time for meals or rest periods.
  • Filling in another employee’s time sheet, or permitting another person to fill in your time sheet.

HR Incidents

  • Entertaining unauthorized visitors while on duty.
  • Verbally threatening, intimidating or coercing fellow employees, supervisors, clients or prospective clients, while performing duties of the employer or representing the employer.
  • Possession of, or reporting for work under the influence of, an intoxicant, controlled or mind-altering substance, without having obtained the same by an authorized prescription.
  • Sexual, racial or other illegal harassment of a fellow employee.
  • Refusing to obey orders of a supervisor pertaining to work or duties.
  • Fighting or physically threatening or harassing the employer’s management, supervisors, fellow employees, clients or prospective clients while performing duties for the employer or representing the employer.
  • Carrying weapons of any kind on the employer’s premises unless specifically authorized by the employer to do so.
  • Divulging confidential information regarding the employer, employees, clients or prospective clients.

End your list with a qualifying statement, something like this: “These examples of misconduct are not all-inclusive. Your employer expects employees to behave in a manner which is at all times in the best interests of the employer and all employees”.

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