HR Solutions

Insubordination, Adoption Leave, Confidentiality

​Q: What constitutes insubordination and how can it be dealt with?

​A: Employers often have policies prohibiting insubordination but may not have guidelines defining which behaviors will be regarded as insubordination.

Insubordination can be divided into two categories: unwillingness to carry out a directive from a manager or supervisor, and disrespectful behavior toward a manager or supervisor.

Unwillingness to carry out a directive can manifest itself as a verbal refusal, a nonverbal refusal or an unreasonable delay in completing work. Disrespectful behavior can include cursing at a supervisor, verbally or physically intimidating a manager or supervisor, or speaking loudly or argumentatively to or about a supervisor.

Employers who face insubordination usually handle the situation using their normal disciplinary procedures. While insubordination can be addressed with warnings and suspensions, extreme examples of insubordination may warrant immediate dismissal.

Although employers do not want to act hastily in disciplinary matters, delaying disciplinary action or ignoring insubordination can give employees the impression that disrespectful behavior is acceptable.

When addressing a situation involving insubordination, the employer should consider the circumstances in which the incident took place. For example, if cursing is common “shop talk” in the workplace, the employer should consider whether the language used by the employee was unusual enough to be considered abusive.

Further, managers may incite insubordination through abusive or abrasive behavior of their own. In such situations, the manager may need performance coaching or even disciplinary action.

In addition, a refusal to carry out an order may result from a misunderstanding of instructions or a fear of unsafe work. In certain circumstances, the U.S. Occupational Safety and Health Administration protects a worker who refuses to perform work if the employee believes in good faith that performing the work would put the employee in imminent danger.

An employee’s refusal to do something that is illegal, unethical or a violation of company policy would not be considered insubordination.

—AM

​Q: Is any kind of certification required when an employee requests FMLA leave to adopt a child?

​A: The Family and Medical Leave Act (FMLA) does not specifically require an employee to provide certification when asking for leave to adopt a child. However, nothing in the act precludes an employer from requiring an employee to provide some type of certification when requesting FMLA leave for adoption, and many employers do require such certification.

If an employer decides to require certification for adoption leave, it is up to the employer to determine what type of documentation is required. Typically, employers require a birth certificate or adoption papers. Some employers have devised a form to be completed and certified by the placement professional or agency, and to be submitted with the placement documentation attached.

Even if an employee does not specifically request FMLA leave, employers should have a clearly written and distributed policy requiring employees who request leave to provide sufficient information about the reason they need the leave.

Employers should remember that if the reason qualifies as one of the allowed purposes of FMLA leave, they are required to notify the employee that any leave taken for that purpose will be counted against the maximum FMLA entitlement of 12 weeks’ leave in a 12-month period.

Employers are required to provide notice to the employee in writing within one to two business days of learning that the employee’s leave qualifies for FMLA purposes. The notice must set out all of the employee’s FMLA rights and obligations, including any duty to provide certification, provisions for substitution of accrued paid leave, benefit continuation rights and requirements, and job restoration protections.

Finally, employers should always check their state family and medical leave laws, since the FMLA does not replace a state law that is more beneficial to the employee, and employers must comply with the state law in those cases.

—MF

​Q: An employee wanted to have a discussion with me and specifically requested that I withhold the entire discussion from the supervisor about whom shes complaining. Am I legally obligated to keep the meeting confidential?

​A: ​An employer is not obligated to honor this kind of employee request, and, in fact, should not honor it. Employers who have knowledge of illegal conduct, discrimination or harassment can be liable for those actions unless they have taken reasonable steps to discontinue and even prevent them. Also, it is not only good employment practice but it is also fair to allow the accused equal time to give his or her side of the story as well as the opportunity to face his or her accuser(s).

Rather than guarantee complete confidentiality to any employee, the employer should try to reassure the employee that the matter will be taken seriously and dealt with in the manner that best serves all parties involved. In any event, an employer should investigate the matter, reach a reasonable conclusion and take appropriate actions based on that conclusion.

• Employee interview.
• Witness interviews, during which witnesses should be told not to discuss with anyone the events under investigation and should be assured that adverse employment actions will not result from their cooperation.
• Interview of the accused party, reminding the person that everyone is presumed innocent.

The employer should prepare a written statement of the complaint and have the complaining employee sign it. The employer also should keep notes during all interviews.

The conclusion reached must be based on the evidence gleaned from the investigation and should be based on the “preponderance of evidence” standard.

After the investigation is concluded, the employer should inform the parties involved of the results reached. If it appears the employee’s complaints are legitimate, the employer should take immediate action to remedy the situation, including discipline if necessary.

—RD

Amy Maingault, SPHR, Margaret Fiester, SPHR, and Ruhal Dooley, SPHR, are information specialists in the Society for Human Resource Managements Information Center.