Federal employment laws don't give employees a concrete definition of gross misconduct, so employees have to look to court cases and individual state laws. Most jurisdictions agree that gross misconduct only applies to the most serious violations. If an employer proves gross misconduct, the employee loses many of her rights. However, she does have the right to question whether or not her behavior qualifies as gross misconduct.
Misconduct and Gross Misconduct
All but the most serious actions or cases of negligence are either simple misconduct or not misconduct at all. Performance issues, such as not meeting goals or not having the skills or knowledge to perform certain job functions, are never misconduct. Simple misconduct includes actions that might be intentional or negligent but don't seriously harm the company or the safety of the workforce, such as coming in late or giving poor customer service. Gross misconduct is an intentional action related to work activities that have serious negative impacts on a company's interests. Gross misconduct includes theft, intentionally damaging company property, being intoxicated at work, serious and repeated cases of insubordination or use of profanity, serious neglect of duties, and other actions that would be viewed as felonies in a criminal court.
One of the main struggles that comes with getting fired for gross misconduct is that employers can and often do try to prevent workers from getting unemployment benefits. In these cases, the employer must prove its claims of gross misconduct. In some states, the unemployment agency will contact fired workers for an initial interview if an employer claims gross misconduct. During this time, the fired worker can give her side of the story. If the unemployment agency rules against the worker, she can still file an appeal. The appeal process varies from state to state, but as an example, California gives the employee and employer a chance to present evidence in a hearing before an administrative law judge.
The Consolidated Omnibus Budget Reconciliation Act gives employees the right to continue their employer-sponsored health insurance temporarily after being terminated, except in cases of gross misconduct. If an employee feels that her former employer has unfairly or incorrectly claimed gross misconduct, she has the right to appeal. Appeals are handled by the plan administrator, who may be a company employee, a union representative or a third party. Employers must send terminated employees a notice of ineligibility, which should have information about filing an appeal, when they deny COBRA coverage. Similar to unemployment appeals, this process involves a meeting or hearing in which the employee and her former employer present evidence to the plan administrator.
Employment Reference Rights
Former employers have the right to give negative references about workers who have been fired for gross misconduct, as long as the information is accurate. This means the employer must give an account of the facts and not much else. If a former boss is lying about a fired worker to potential employers, the worker might be able to sue. However, a simple call to the company's human resources department is usually an easier, less stressful way to solve the problem. If an old boss is giving an accurate statement about gross misconduct, however, there is not much the fired worker can do aside from using different references or trying to convince her old boss to stop providing negative references.
- Vermont Department of Labor: Misconduct
- Fox Rothschild: More About COBRA - What Is Gross Misconduct?
- U.S. Department of Labor: Understanding Your Fiduciary Responsibilities Under a Group Health Plan
- U.S. Department of Labor: Health Benefits Adviser Glossary
- Find Law: Employment References - How to Avoid Getting Sued
Jon Gjerde worked as a journalist in northern California where he covered topics ranging from city, county and tribal governments to alternative transportation. He holds a Bachelor of Arts in English from University of California, Davis.