Legal Clinic

Defiant and Disrespectful

Insubordinate behavior, such as refusing to carry out a direct order, is grounds for termination. But before any action is taken, HR leaders should ensure that company policies explain what constitutes insubordination and make sure incidents are well-documented.

Monday, October 31, 2011
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Question: What does the definition of insubordination cover? One of my employees rolled her eyes and gestured in a disrespectful fashion when I asked her to obtain information for me in connection with her job duties. When I asked her about this, she said she was trying to finish up some work before leaving on vacation. She did not supply me with the information and her attitude is typical. Does her conduct constitute insubordination?

Answer: The short answer is that because the employee deliberately failed to supply you with the information you requested, her conduct could likely constitute insubordination. However, it may not be appropriate to take an adverse employment action against her, such as termination, without first establishing a written record of the employee's insubordination.

It is a well-established principle that employees, including those who hold executory or supervisory powers, have a duty to obey all reasonable instructions of the employer. See Cal. Lab. Code § 2856; Cornett v. NBC Weather Plus, LLC, 2008 NY Slip Op 50021U 1, 5 (N.Y. Sup. Ct. 2008).

Even if the instruction is given in bad faith, an employee may still have an obligation to perform and then, later, enter into a grievance process. See Reilly v. Polychrome Corp. and Sun Chemical Corp., 872 F.Supp. 1265, 1268 (1995) (citing Development Co. of Am. v. King, 161 F. 91 (2d Cir. 1908)). This duty exists to ensure that employers can effectively run their businesses.

Insubordination may involve different factual scenarios, but is generally defined as a willful or intentional failure to obey a lawful and reasonable request of a supervisor.

The elements of insubordination commonly include: (1) a direct or implied order that was issued to an employee, (2) the employee received and understood the order and (3) the employee refused to obey the order either through a statement of refusal or nonperformance.

Insubordination should not be confused with insolence. Although both may serve as grounds for termination, insubordination most commonly has to do with an employee's refusal to perform, whereas insolence tends to involve an employee being rude or disrespectful.

Various states have issued court opinions defining insubordination.

New York courts have defined insubordination as "[a]n employee's failure to comply with an employer's reasonable request ... ." Matter of Guagliardo v. Commissioner of Labor, 27 A.D.3d 866, 867 (3d Dep't 2006); Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 508 (2010) (court held hospital properly terminated physician as the hospital presented a "multitude of serious, independent, documented, and therefore good-faith complaints" of physician's unprofessional conduct, poor attitude and insubordination when the physician, for example, refused to show up to his clinics); Matter of Guynup v. Co. of Clinton, 2010 N.Y. App. Div. Lexis 4810 (3d Dep't 2010) (appellate court sustained the termination of a sheriff's lieutenant after finding substantial evidence to establish that the lieutenant engaged in misconduct and insubordination by refusing to comply with a superior's order requiring that he surrender all of his firearms).

The California Supreme Court has defined insubordination as "a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed." Garvin v. Chambers, 195 Cal. 212, 224 (Cal. 1924).

The Employment Development Department of California has since expanded upon that definition to include (1) disobeying an employer's order or instruction, (2) disputing or ridiculing authority, (3) exceeding authority or (4) using vulgar or profane language towards a supervisor. The EDD website is useful in defining and providing examples of behavior that may or may not arise to misconduct under each category.

In some states, insubordination may require a showing of more than one single instance of disobedience. For example, the Mississippi Supreme Court has defined insubordination as a "'constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.'" Sims v. Board of Trustees, 414 So. 2d 431, 435 (Miss. 1982).  

In all cases, it is important to note that where a contract, employment agreement or employer policy exists between an employer and employee and provides for a unique definition of insubordination, a court will not apply a common-law definition as indicated above. See Young v. Mississippi State Tax Commission, 635 So. 2d 869, (Miss. 1994); cf. Berry v. Deutsche Bank Trust Co. Ams., 2008 U.S. Dist. LEXIS 91561, at *11 (S.D.N.Y. Oct. 21, 2008) (where employment agreement was unambiguous and its purpose would not be frustrated by interpreting it in accordance with its plain meaning, the court refused to disregard the agreement's meaning and would not rewrite the agreement).

Thus, an employee's failure to obey a supervisor's reasonable instruction may not constitute insubordination if the language of a contract or employer policy provides otherwise. It is important that you review any applicable contractual definition related to insubordination in order to determine if the employee is, in fact, being insubordinate.

In addition, justifiable acts done by employees in defense of their contractual rights may not be considered insubordination. Rudman v. Cowles Communications Inc., 330 N.Y.S.2d 33 (1972).

For example, a court found that the employee did not breach her contract when she had a right under her contract to take vacation and thus a right to disobey her supervisor's instruction to report to work. Cornett supra 2008 NY Slip Op 50021U 1.

However, contrast contractual cases with cases involving "at-will" employees.

At-will employment means that employment with the company is not for a fixed term or definite period. Thus, employees may terminate their employment, and the company may terminate employees' employment, at any time, with or without reason, without consent and without prior notice.

Although employers are not obligated to offer a justification for terminating an at-will employee, given the heightened possibility that an employee may seek legal recourse, it is wise for the employer to provide reasons for the termination.

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In cases involving insubordination, employees may successfully challenge the disciplinary actions taken against them by proving that they were justified in refusing to perform because they had a reasonable, good-faith or actual belief that carrying out their employer's orders would violate the law, jeopardize their health and safety or those of others, or provide undue risk of injury or illness. See generally Cal. Lab. Code § 2856 (2011) ("An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee"); N.Y. LAB. LAW § 740(2)(a). See also Mazzacone v. Corlies Assoc., 802 N.Y.S.2d 182, 182 (N.Y. App. Div. 2005) ("To establish a cause of action under [NY] Labor Law § 740, employee must prove that their employer engaged in an activity, policy, or practice which violated a law, rule, or regulation that presented a substantial and specific danger to the public health or safety").

An employer can avoid legal battles by establishing a clear record of employee insubordination and subpar work performance. The best way to do this is by maintaining complete and up-to-date documentation of personnel decisions affecting all employees.

For example, employers should always be able to easily point to physical documentation of an employee's performance and instances where the employee refused to perform. Such documentation may take the form of formal written reprimands, notes of conversations pertaining to discipline, performance reviews or productivity reports.

Employers should also be sure to include any notes, agendas or documents related to meetings or discussions at which employees are reviewed, and at which any personnel decisions are made. Such documents should always be signed and dated.

The goal is for an employer to have previously provided written directives, disciplinary warnings and a final warning with notice of possible termination before dismissing an employee for insubordination. Adverse employment actions need to be handled carefully and should be done when necessary, with the consult of legal counsel.

In addition to documenting instances of employee insubordination, it is essential that every employer develop anti-insubordination policies defining what is and isn't appropriate behavior.

For example, employers should explicitly state that failure to carry out direct orders from supervisors may constitute grounds for termination. Anti-insubordination rules, when properly utilized, can help foster a productive work environment and maintain respectful relations between employers and employees.

However, it is not sufficient to merely have a policy, employers need to consistently monitor and enforce it. In an effort to minimize potential risks, employers should consider regularly educating employees about what the company expects and considers appropriate and inappropriate behavior.

Ignoring insubordinate or otherwise inappropriate behavior is worse, as it could subject the employer and its' employees to a disruptive work environment and/or potential legal issues in the future.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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