Insubordinate Employees May Deserve a Second Chance

By Allen Smith Dec 9, 2015
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While severe insubordination may call for immediate termination, an employee should likely be given a second chance for more innocuous events.

“Not all insubordination is created equal,” said Scott Fanning, an attorney with Fisher & Phillips in Chicago. “There very well may be circumstances supporting the immediate termination of one employee and not the other. For example, an employee cursing out his supervisor in the presence of co-workers may not be comparable to an employee refusing to sign a disciplinary action when required to do so by company policy.”

The difference between the two types of insubordination—one calling for immediate discharge and the other not—may boil down to whether a second chance is at all possible. If bridges haven’t been completely burned, “providing an employee with an opportunity to correct his or her behavior can have many positive effects,” Fanning noted. “For example, employee turnover can be costly and you never know if the next employee will exhibit more serious issues.”

“Also, second chances can increase employee morale and offer a sense of job security,” Fanning continued. “That being said, some types of severe insubordinate conduct should not be tolerated and keeping the employee may actually harm employee morale and send the wrong message.”

Nathaniel Glasser, an attorney with Epstein, Becker & Green in Washington, D.C., said that openly berating a supervisor or responding violently to a direct order may give rise to immediate termination. But “where the insubordination is simply an ill-advised expression of an unbending difference of opinion, a second chance may be warranted.”

Different Types of Insubordination

Employers must show three things to prove insubordination when a worker refuses to follow an order, Glasser said:

  • A supervisor made a direct request or order.
  • The employee received and understood the request.
  • The employee refused to comply with the request through action or noncompliance.

Paul White, Ph.D., a licensed psychologist and consultant in Wichita, Kan., who co-authored the book Rising Above a Toxic Workplace (Northfield Publishing, 2014), said that insubordination also implies an employee’s refusal to follow a reasonable and work-related order that did not place the individual’s safety or health at risk and did not violate public policy. He emphasized that the employee needs to be informed of the consequences of not obeying the direct order, such as discipline up to and including termination.

“In our culture—in some regions more than others—disagreeing with others is not socially acceptable, especially in public or in front of others,” White added. “And for some, disagreement—two people having different positions on how to do a task—implies that one person is ‘right’ and the other person is ‘wrong.’ However, this may not be the case. For example, how to drive from the office to the airport—there may be more than one acceptable route.”

“An employee may express a healthy difference of opinion, which will not cross the line of insubordination unless that employee refuses to cede to his or her supervisor’s orders even after the supervisor has considered the employee’s different opinion,” Glasser said.

Insubordination can also refer to disrespectful behavior, most commonly verbal abuse, toward a manager or supervisor, noted Patrick Lamparello, an attorney with Proskauer in New York City.

One employee may be terminated for insubordination while another isn’t because the discharged employee has a history of disciplinary issues, while the other one doesn’t, he added.

Yet this must be dealt with carefully: If a company treats employees who engage in the same type of misconduct differently, it is laying the groundwork for a discrimination claim, cautioned Amber Rogers, an attorney with Hunton & Williams in Dallas. “However, because no two employees are the same, there is typically a legitimate reason that justified the difference in treatment,” she said. These factors can include prior discipline records, years of service and the severity of the insubordination, she noted.

Consider less-severe types of discipline, rather than termination, for a first offense, Rogers suggested. “There are a number of disciplinary options that are harsh, such as suspension without pay, that are effective ways to discipline, but less permanent than termination,” she remarked. “Discipline less severe than termination can curb the conduct, but allow for the rehabilitation of an employee. Employee handbooks should be written in such a way to advise employees about the rules, but also to leave the company latitude to handle the multitude of disciplinary issues that may arise.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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