Misconduct MC 255 - Fact Finding Guide


First question to ask:

What is the alleged act(s) of insubordination?

1. Disobeying Order, Including Refusal to Transfer and Work Overtime

  1. What was the employer's order, instruction or requirement that was disobeyed?
  2. Was the employer's order lawful and reasonable?
  3. Did the claimant understand the order etc.? If not, why not? If yes, why did he or she disobey it?
  4. Would the claimant's disobedience affect the employer's interests? If yes, how?
  5. If the claimant stated compliance was impossible,
    1. Why was compliance impossible for the claimant?
    2. Did the claimant inform the employer, or was the employer aware of, why it was impossible for him or her to comply?
  6. If compliance would impose a new and unreasonable burden,
    1. What hardship would the claimant suffer?
    2. How long would the hardship last?
  7. If compliance would injure the claimant's health,
    1. Was the claimant under a doctor's care for some ailment? If yes, did the doctor advise him or her not to comply with the employer's order?
    2. If not, did the claimant have some health problems which would be aggravated by the work he or she was asked to do?
    3. Why did the claimant think compliance would aggravate his or her health problems? Was his or her fear based on past experience?
    4. Was the employer aware of the claimant's health problems? If not, did the claimant inform the employer?
  8. If claimant states compliance would violate the law,
    1. Why did he or she think the order was unlawful?
    2. Did he or she discuss the legality of the order with the employer?
    3. What law or laws did the employer's order allegedly violate?
    4. When the legality of compliance with an order is uncertain, the determination interviewer should contact such agencies as the local police department, California Highway Patrol, Labor Commissioner, Civil Aeronautics Administration, etc., in order to get first-hand, accurate information.
  9. If noncompliance is due to doubts of authority of the individual issuing the order,
    1. Why did the claimant think the person had no authority to give the order?
    2. Did he or she attempt to check with the employer if the person had authority to give the order? If not, why not?
    3. Was he or she ever told that the person had authority?
    4. Had the person ever before given orders to the claimant, or co-workers in the presence of the claimant? With what results?

2. Disputing or Ridiculing Authority

  1. For Disputing Authority,
    1. When and where did the dispute take place?
    2. What was the subject and cause of dispute?
    3. What was said during the dispute by each disputant? Were there threats of violence?
  2. For Ridiculing Authority,
    1. What did the claimant say or do to ridicule the employer's authority?
    2. Under what circumstances was the ridicule said or done?
  3. For Both Disputing and Ridiculing Authority,
    1. Were there witnesses to the dispute or ridicule?
    2. In what way did the dispute or ridicule exceed the normal bounds of "give and take"?
    3. Had the claimant been given prior warnings or reprimands about such acts or comments?
    4. What was the effect of the dispute or ridicule on employer control, employee morale, or the public?

3. Exceeding Authority

  1. What unauthorized act did the claimant commit that caused his or her discharge?
  2. What was the claimant's understanding of his or her authority at the time of the incident?
  3. When and under what circumstances did the incident occur?
  4. Did the claimant know he or she was exceeding his or her authority. If not, why not?
  5. Was there an emergency situation?
  6. Was the claimant allowed to use judgment or discretion in his or her work?
  7. Had the claimant been warned or reprimanded for exceeding authority?

4.Vulgar or Profane Language to Supervisor

  1. What profane language did the claimant use or write? Get the exact words, if possible.
  2. To whom was the language addressed?
  3. When and where did this occur?
  4. Did anyone overhear the claimant's remarks? Talk to witnesses, if possible.
  5. How does the claimant explain his or her use of the language in question?
  6. Was the use of such language common in the establishment?
  7. Did the supervisor to whom the language was addressed habitually use such language himself or herself when talking to subordinates?
  8. What tone of voice did the claimant use when he or she made the remarks?
  9. Is there any employer rule concerning the use of vulgar or profane language? If so, what is it?
  10. Has the claimant previously been warned or reprimanded about the use of vulgar or profane language?