“Insubordination” is a term that shows up frequently in
documentation and discussions about why an employee was, or should be, disciplined
or terminated. According to the dictionary
definition, “insubordinate” means “not obeying authority” or “refusing to
follow orders.” Following direction from one’s boss is a pretty important part
of any job, so “insubordination” certainly sounds like it should be a
terminable offense. However, it is risky for employers to accept a charge of
insubordination at face value without analyzing the nature of the conflict that
is driving it. Labor law protects a surprisingly high degree of insubordination
if it is “concerted.”
Any adverse action can potentially lead to a charge that the
action was taken for a discriminatory or retaliatory reason. In defending an
action, the employer is required to proffer a legitimate business reason for
taking the adverse action, and they may have to further defend against an
employee’s claim that the employer’s business reason is really just a pretext
for an unlawful reason. “Insubordination” as the sole justification for an
adverse action is especially tricky to defend because it can mean almost
anything and may be framed in wholly subjective terms. By definition, all
“insubordination” means is that the employee disagreed with her supervisor
and/or refused to do something she was told to do. What if the thing about
which the employee and supervisor disagreed is the supervisor’s willingness to
tolerate sexual or racist banter? What if the thing the employee is refusing to
do is something she believes is unethical or unlawful? Or what if the employee
won’t back down on an issue that he or she has a right to press?
In dealing with employee conduct that it considers
insubordinate, an employer should ask itself the following questions:
- With what did the employee disagree?
- What specifically did the employee refuse to do?
A communication breakdown or personality conflict between
supervisor and employee may well merit a disciplinary action. It is true that
some people really are difficult to work with and are toxic to a workplace. They
may refuse to take instruction or go out of their way to be disagreeable. They
may discourage innovation or resist needed change. But they may also be
standing up against a practice the employer agrees is problematic, or
exercising a protected right. And an employer may also discover that the real
problem is with the supervisor’s ability to lead or communicate. Taking hasty
action without the facts will likely cause more problems – legal or otherwise –
than may be solved.
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