What is gross misconduct?

Updated: November 9, 2024

Gross misconduct definition and meaning

Gross misconduct occurs when an employee engages in seriously inappropriate behavior at work, potentially warranting immediate termination. This behavior, which substantially breaches the company’s standards of conduct, may include theft, fraud, violence, harassment, or severe insubordination.

More about gross misconduct

The specifics of gross misconduct can vary by employer and also differ in legal definitions.

• Some US courts refer to the standard established for employees who were denied COBRA benefits due to being terminated for gross misconduct. In this instance, gross misconduct is defined as acting in an intentional, wanton, willful, deliberate, reckless manner, or showing deliberate indifference to an employer’s interest.
• The COBRA regulations do not specifically define “gross misconduct.” The US Department of Labor (DOL) says it can be assumed that firing for ordinary reasons like excessive absences or poor performance does not amount to gross misconduct.
• Generally speaking, an employee cannot receive unemployment benefits if they were fired for gross misconduct, though what constitutes gross misconduct may differ by state. However, if fired for ordinary misconduct, a worker might be disqualified from receiving unemployment benefits only for a specific period.

It’s important to distinguish between misconduct and gross misconduct. Misconduct is typically unintentional and not serious enough to warrant dismissal; however, if the behavior persists, dismissal may become necessary. The act is not malicious and doesn’t have a severe impact on the company.

Conversely, gross misconduct is regarded as an intentional act that can have negative outcomes on the well-being of a business.

How exactly do courts determine gross misconduct?

Per HR Daily Advisor, some courts look to state unemployment insurance laws for direction when determining whether gross misconduct occurred.

Here’s some other factors for employers to consider.

• Merely ordinary negligence is not enough; the employee’s behavior must be willful and intentional
• If the employee significantly deviated from the employer’s code of conduct, that can be regarded as gross misconduct
• The conduct need not be criminal to be considered gross misconduct

In addition, the court may consider whether:

• The conduct was unlawful, and to what degree (Remember, it doesn’t have to be)
• The employer sustained any damage, and to what extent
• The employer properly investigated and documented the gross misconduct claim
• Firing the employee was the appropriate course of action
• The employer handled the claim fairly, consistent with similar gross misconduct claims

Examples of gross misconduct at work

Below is a non-exhaustive list of actions that may be regarded as gross misconduct:

• Theft of company property
• Embezzlement of company funds
• Stealing from coworkers
• Physical violence
• Threats of violence against other employees, clients, etc.
• Sexual harassment or assault
• Using alcohol or illegal drugs at work
• Any form of discrimination
• Falsifying or forging work documents
• Offensive language
• Bribery or blackmail
• Partaking in illegal activity
• Plagiarizing
• Breach of confidentiality

Benefits of addressing gross misconduct in your policy

Here are some reasons why including in your policy can be worthwhile.

• Lets employees know what constitutes gross misconduct and the consequences, including suspension and termination. Much of this information can be found in the employee handbook.
• Protects the company legally. This allows you to demonstrate in legal proceedings that you took reasonable steps in handling the gross misconduct.
• Allows you to develop fair and consistent practices, including grievance reporting, investigation procedures, and conflict resolution.

Steps in a gross misconduct investigation

Oftentimes, this starts with the HR team meeting with the appropriate stakeholders (including the alleged offender’s manager) to discuss the issue and gather information from witnesses.

Additional investigative steps include:

• Reviewing the employee handbook and other documents to locate evidence that the offender behaved in an illegal or substantially inappropriate manner
• Checking the offender’s employment history for proof of repeat (or similar) behaviors that might have been overlooked during the hiring process
• Obtaining the offender’s side of the story, including their reasons for committing the act (if applicable)
• Conducting a formal disciplinary hearing so that the necessary parties, including the accuser and the offender, can put their case forward

Remember, based on the severity of the gross misconduct, reaching out to law enforcement and/or other public officials may be necessary. You may also need to suspend or let go of the employee right away, prior to launching a formal investigation.

Consult with your legal team to ensure you are handling any situations that arise appropriately and in accordance with ethical and legal guidelines. This is especially important because firing an employee in error for gross misconduct can potentially lead to a wrongful termination lawsuit.

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