One of the most common questions we receive is, “What is the difference between misconduct and poor job performance?” In basic terms, misconduct is a behavior issue, and poor job performance is a competence issue. Sometimes these situations are very easy for the employer to differentiate. Such as; an employee committed theft and was terminated (misconduct) vs. an employee is working hard but is not capable of meeting their sales quotas (poor performance). However, an employer’s management of the situation is the difference in a state viewing an incident as misconduct instead of poor performance.
A claimant discharged for poor job performance is seen as a non-protestable claim. This means the employer should not protest the charges and is expected to pay benefits to the claimant. Why? Because the employer has the burden of proof in any discharge case. The employer must illustrate to the state that the claimant was responsible for their discharge. Poor job performance is a poor hiring decision made by the employer. Therefore the employer is at fault. The claimant didn’t live up to the expectations of the employer and was terminated. Though there is nothing wrong with terminating an employee who is not sufficiently competent to meet an employer’s expectations, it is not the employee’s fault. The state’s view is that the employer should have hired someone better for the position. In this case, the employer would be responsible for the payment of benefits
Related: Common Causes of Unemployment Insurance Overpayments
A claimant discharged for willful misconduct is seen as a protestable claim. This means the employer should protest the charges and contest the payment of benefits to the claimant. Why? Though the employer still has the burden of proof in this (and all) discharge cases, they can demonstrate to the state that the claimant was responsible for their discharge. Misconduct is viewed as the claimant knowing a rule, policy, or employer expectation, then being coached and trained on this policy and still deliberately violating it.
So, where is the line? Is it in warnings? Further training? Instructions? Documentation? Yes. It is in all of these as well as quantifiable expectations. The key points in the state viewing a case as misconduct are 1. Behavior; meaning it is the claimant’s behavior that is a problem, not their capability to follow such a rule and 2. Deliberate or willful; meaning the claimant knowingly violated a rule and made the conscious decision to do so.
One example is that of a Registered Nurse at a local hospital. An example of a poor job performance case is; An RN was not disposing of a patient’s bedsheets properly each evening. The RN’s supervisor informed the nurse of the standard of care and instructed him to do better. The nurse was capable of changing and disposing of the bedsheets as he had previously done so during his training period. Over the next week, however, the supervisor saw no improvement. The supervisor verbally instructed the nurse to dispose of the bedsheets each night. The nurse still did not improve after a few more weeks of back and forth with his supervisor, but the supervisor never documented the problem or issued any type of warning that would alert the nurse to the fact that his job was in jeopardy. Ultimately, the nurse was terminated by the supervisor for perceived misconduct. The State, however, would likely not view this as misconduct but poor job performance because the nurse did not meet the employer’s expectations. The employer could not prove that the employee violated a policy, did not heed a warning , nor did he know his job was in jeopardy.
Had the employer handled this situation differently, this case could have been considered a discharge due to misconduct. An example of this being a misconduct case is; The nurse’s Supervisor in the above scenario followed an established progressive discipline process by issuing a verbal, written and/or final written warning to the nurse. The supervisor first verbally instructed the nurse of the standard of care and clearly instructed him to change and dispose of the bed sheets each night. When the nurse failed to adhere to those instructions, the Supervisor clearly indicated to the nurse in writing that failing to change and dispose of the bedsheets each evening was a violation of hospital policy and failure to do so may lead to further disciplinary action, up to and including termination. The Supervisor requested that the nurse sign the written warning to acknowledge that he received, read, and understood the contents of the warning. The nurse continued to disobey the instructions by not disposing of a patient’s bedsheets and was ultimately discharged for misconduct. In this scenario, the State likely would have ruled that this was indeed a discharge due to misconduct. The Nurse was not terminated for failing to meet the employer’s expectations, he was terminated for his behavior, which was willfully disregarding the instructions of his supervisor. The nurse’s actions should be considered a willful disregard for the employer’s interest and as such, the employer should not be responsible for the payment of benefits.
Neither version discussed is an open and shut case. However, with proper written warnings and documentation, and ensuring the employee knew his job was in jeopardy, the employer has a good chance of winning the case.. As an employer, ensuring that you have clear cut expectations and rules in place for your employees, as well as a uniformly enforced discipline process, you will increase your chances of State Unemployment Adjudicators viewing cases such as these as willful misconduct instead of poor performance. Outsourcing with a vendor specializing in unemployment management is a good way to maintain these record-keeping practices to help determine the difference between misconduct and poor job performance.
Understanding Misconduct
What is considered misconduct at work? A general definition of misconduct is unacceptable behavior or actions performed by an employee that violates a company’s policies, local or federal regulations, or ethical standards. In turn, misconduct can create a hostile or disruptive workplace environment that can reach all corners of an organization, negatively impacting employee morale and potentially damaging the reputation of a business.
Misconduct can take many shapes and forms, from poor work performance to behavioral issues and harassment. Some of the common types of misconduct that can occur in the workforce include:
- Theft: Stealing company property, engaging in fraud and embezzling funds are examples of theft in the workplace that fall under the umbrella of misconduct. Theft can range from petty theft to more organized financial fraud schemes.
- Discrimination: Any form of discrimination, which is when an employee is mistreated based on their gender, age, race, religion, sexual orientation or other defining characteristic, is considered misconduct. Discrimination can be seen in hiring, compensation, promotions and daily interactions.
- Harassment: Forms of harassment, such as bullying, sexual harassment or any other form of unwanted behavior, are classified as misconduct in the workplace.
- Substance abuse: Misusing alcohol or drugs in the workplace is another form of misconduct, as it can lead to poor work performance, safety risks and potential harm to oneself or others.
- Insider trading: Employees who illegally trade stocks or securities based on confidential information that the public can’t access is known as insider trading and is another form of workplace misconduct that can also pose legal consequences.
- Misuse of company resources: Using company resources, such as equipment like computers and the internet, or engaging in unrelated work activities on company time is misconduct.
- Health and safety violations: There’s a reason local, state and federal health and safety regulations, such as OSHA regulations, are put in place. Violating these regulations can pose a danger and put others at risk.
Many different forms of misconduct that can be seen in the workplace. While measures are implemented to prevent misconduct and unsatisfactory job performance, instances can still occur. In fact, HR Acuity’s 2023 Workplace Harassment & Employee Misconduct Insights found that 52 percent of employees have faced or witnessed workplace misconduct, with the top types including bullying (51 percent), sexual harassment (40 percent) and racism (30 percent). Any form of misconduct should not be tolerated, as they can significantly impact the work environment and team dynamics. If misconduct and poor work performance aren’t addressed, it can create a hostile work environment that can affect your organization’s turnover rates, bottom line, reputation and more.
Common Indicators of Poor Job Performance
As an employer, supervisor or manager, knowing how to identify unsatisfactory job performance is crucial in ensuring a positive, safe and productive work environment. Some common indicators of poor work performance include:
- Regularly missing deadlines
- A noticeable decline in productivity and the quantity or quality of work
- An increase in errors or mistakes on deliverables
- Low engagement, motivation and enthusiasm on the job
- Poor collaboration with team members
- Resistance to feedback or reacting negatively to feedback
- Increased absenteeism
- A decline in taking initiative or generating ideas
Understanding the signs and symptoms of poor work performance can help you identify drops in performance to remedy the issue and provide support to that particular employee.
Consequences for Employers
Unsatisfactory job performance can pose a wide range of consequences for employers, which is why it’s crucial to understand the signs of poor work performance and have plans and systems in place to address misconduct. Some potential consequences of misconduct and poor job performance include:
- Increased turnover: If there is continuous misconduct in the workplace, other employees may feel unsafe or uncomfortable, leading to higher turnover rates and increased recruitment and training costs.
- Legal consequences: Misconduct can result in various legal consequences depending on the nature, such as penalties, fines or lawsuits.
- Reputational damage: Continuous cases of misconduct can tarnish a brand’s reputation, leading to decreased trust among employees and customers, a drop in investor confidence and more.
- Financial costs: Misconduct and poor work performance can cause many problems that can cost organizations money, including decreased productivity, recruitment and onboarding costs, and costs related to legal fees, investigations and settlements.
Strategies for Addressing Misconduct and Poor Performance
With numerous consequences putting employers at risk of legal actions, reputational damage, financial costs and more, it’s essential to have strategies to address misconduct and poor work performance. Some strategies you can implement include:
- Implement well-defined policies and procedures that outline expected behaviors and consequences for misconduct
- Act promptly when responding to instances of misconduct
- Ensure fair and consistent disciplinary actions
- Keep accurate and detailed records on the investigation process of misconduct cases
- Set clear expectations for work performance
- Provide regular feedback to promote a growth mindset in employees
- Implement a performance improvement plan (PIP) to assist employees struggling with performance
- Offer training and development programs to address skill gaps
Employee Assistance Programs (EAPs)
An employee assistance program (EAP) is a work-based program designed for employees facing personal issues that might be impacting their job performance. From time to time, everyone might face personal problems that creep their way into the workplace, from grief and substance abuse to psychological disorders and family problems. An EAP can help address issues that affect the emotional and mental well-being of employees through short-term counseling, assessments and other forms of confidential services to help employees manage any personal grievances impacting their work performance.
Creating a Positive Workplace Culture
Studies find that a positive workplace culture can improve employee performance, employee commitment and achievement-striving abilities. There are several ways you can create a positive workplace culture that limits instances of misconduct or unsatisfactory job performance, such as:
- Creating a clear mission that guides employees in the work they do
- Promoting open and transparent communication at all levels
- Emphasizing team collaboration to achieve common goals
- Recognizing and appreciating employees for their achievements and contributions
- Offering professional growth opportunities
These are just some of the actions you can take to create a positive workplace culture that promotes the safety and well-being of your staff while reducing poor job performance and misconduct.