A productive and professional work environment does not just happen; it is the product of clear expectations. Your business has a responsibility to take appropriate steps to prevent and respond to employee misconduct. Employers can start on a game plan for success by establishing a policy on standards of conduct.

Below are seven tips for developing effective workplace conduct policies and practices:

#1: Develop a written policy.

It is a best practice to have a written policy on standards of conduct that:

• Sets standards for maintaining a productive, safe, ethical, and professional work environment.
• Provides examples of conduct that would violate the policy (e.g. theft of company property, falsification of time records, fighting or threatening violence in the workplace, etc.).
• Indicates that the list of examples isn’t exhaustive and other forms of misconduct may result in disciplinary action.
• Specifies the possible consequences for policy violations.
• Identifies multiple avenues for employees to report possible violations (e.g. supervisor, HR, and upper management).
• Directs employees to whom they can go to with questions about the policy.

#2: Ensure the policy allows flexibility.

While you want to enforce your workplace conduct policy consistently, draft the policy so that it gives you flexibility to take appropriate action based on the specific facts of each situation. Avoid language that locks you into only one course of action and prevents you from considering other factors, such as the employee's history of misconduct. Consider stating: "violations of the policy may result in disciplinary action, up to and including termination."

#3: Keep the policy within the law.

While employers have discretion to address on-duty misconduct, there are limitations when it comes to addressing off-duty conduct. Generally, many employment laws prohibit employers from considering certain off-duty activities when making employment decisions. While we provide a few examples below, employers should check applicable laws when developing standards of conduct policies.

Lawful Off-Duty Conduct

Several states, including California, Colorado, Illinois, Minnesota, Montana, Nevada, and North Dakota, have laws that prohibit employers from taking adverse action against employees for engaging in lawful off-duty activities or using lawful products while off duty. For example, in some states, employers are prohibited from taking adverse action against an employee for drinking alcohol, consuming tobacco products, carrying a fire arm or gambling while off duty.

Arrests

Many states prohibit employers from taking adverse actions against employees because of arrests or arrest records. In addition, the Equal Employment Opportunity Commission (EEOC) has stated that taking an adverse employment action against an employee because of an arrest record may result in a violation of antidiscrimination laws. Employers should keep in mind their obligations under these laws and assess each individual situation before considering any employment action based on an arrest.

Convictions

Some states protect employees who have been convicted of a crime unless the conviction relates to the individual's job duties. Employers should not automatically take an adverse employment action against an employee because of a criminal conviction. Rather, the EEOC recommends that employers conduct an individualized assessment before taking an adverse action against an employee on the basis of a criminal record. Click here for more information on the EEOC Guidance.

Concerted Protected Activity

Under the National Labor Relations Act, employees have the right to act together to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment. These rights are considered "concerted protected activity" and apply to both non-unionized and unionized employees. Employers must make sure that their standards of conduct policies could not be construed to restrict these rights. For example, if your standards of conduct bans employees from revealing "confidential company information," your policy should make clear that wages and working conditions are not considered confidential company information, and employees are free to discuss such topics.

Connection Between Off-Duty Conduct and the Job

For legitimate business reasons, there are certain situations where an employer can expect their employees to comply with the company's policies while off duty. For example, an employee can be expected to abide by an employer's sexual harassment policy during off hours since sexual harassment of co-workers or clients outside of work could negatively impact the employer's business. Employers should consider consulting legal counsel before disciplining an employee for off-duty conduct.

#4: Investigate complaints thoroughly.

Conduct a prompt, thorough, and impartial investigation upon learning of allegations of wrongdoing in the workplace. Gather all the facts, speak to all witnesses, including the accuser and alleged offender, and determine whether misconduct has occurred. Take all complaints seriously and train supervisors on what to do upon learning of employee misconduct.

#5: Implement workplace modifications to address misconduct.

After learning of employee misconduct, consider workplace modifications to immediately address the infraction. For example, if an employee is accused of harassing a co-worker, you may want to separate the complainant and the alleged harasser pending the outcome of an investigation. Discuss with the complainant options that might make them feel less intimidated, uncomfortable or threatened.

#6: Take appropriate corrective action.

If an investigation reveals a workplace violation, take immediate and appropriate corrective action. The corrective action should reflect the severity of the misconduct and may include training, job transfer, suspension, termination, or any other appropriate disciplinary action.

#7: Document.

Retain a signed statement explaining the misconduct and the disciplinary action in the employee's personnel file. In addition, maintain a separate investigation file that includes: (1) all interview notes; (2) all communications with witnesses, the complainant(s), and the alleged offender(s); (3) all written witness statements; (4) all documents relating to the allegation(s); (5) the investigator’s report; and (6) all documentation of any remedial action taken.

Conclusion:

Employers should clearly communicate standards of conduct to employees and enforce these standards consistently and in accordance with federal, state, and local laws.