The seriousness of termination for gross misconduct can range from benign to the harsh reality that the employee may never again be employed in his field. Although employers don't always provide concrete definitions for what constitutes gross misconduct, the outcome of a termination for willful and intentionally poor behavior in the workplace can be the equivalent of a slap on the wrist or criminal charges being filed against the employee even after he's lost his job.
What is Gross Misconduct?
Employers' handbooks broach the subject of gross misconduct by providing examples of what constitutes a terminable offense. However, a clear definition of gross misconduct eludes many employers. Gross misconduct often is decided on a case-by-case basis, except in cases of criminal or illegal actions, such as embezzlement and violent behavior that overtly threatens the safety and well-being of both the employee and his colleagues.
The seriousness of termination for gross misconduct largely depends on the underlying reason that supports the company's decision to terminate the employee. If the termination was based on an illegal act like theft, it's very serious. However, it might not be so serious if the termination for gross misconduct was based on violation of a workplace policy such as spoken insubordination in repeatedly ignoring a supervisor's work directives.
Denial of Post-Termination Continuation of Benefits
Gross misconduct can result in the employee being denied the option to continue her medical coverage. When an employee resigns or is fired, the Consolidated Omnibus Budget Reconciliation Act of 1986, or COBRA, provides continuation of medical coverage benefits, as long as the employee wasn't terminated for gross misconduct. The problem is that the U.S. Department of Labor -- the federal agency that enforces COBRA regulations -- doesn't clarify what constitutes gross misconduct. That being said, a West Virginia federal court ruled that gross misconduct is conduct that's so egregious that it "shocks the conscience." However, that merely confounds the definition of gross misconduct, because it begs the question, "Whose conscience?"
An employee who's terminated for gross misconduct is almost never eligible for rehire. However, there might be a rare instance where the employee could be rehired if she presents a plausible justification for overturning the company's basis for her termination. Therefore, the seriousness of termination for gross misconduct usually means the employee can't come back to work for the employer. For an employee who has been terminated, not being able to return to work for the same employer might not be a serious concern, especially if she finds employment elsewhere.
When gross misconduct means embezzlement, theft of company property or violent actions and behavior, it becomes a more serious matter than simply being denied medical coverage or rehire. When an employee is terminated for illegal acts, he might be subject to prosecution. And if an employee is found guilty on criminal charges, it could affect his ability to ever find work in his chosen field. For example, an attorney who has been fired from his law firm for misappropriating money held in trust for his clients may have his law license suspended or even revoked.
- U.S. Department of Labor: FAQs for Employees About COBRA Continuation Health Coverage
- Dickinson Law: Employer Claims "Gross Misconduct" Exception After Being Sued for Failure to Send Proper COBRA Notices
- The Yale Law Journal: The Myth of Prosecutorial Accountability after Connick vs. Thompson - Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct
Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. Ruth resides in the nation's capital, Washington, D.C.