You can fight a claim of insubordination in the workplace by writing a rebuttal letter to be included with the insubordination claim in your employee file. This challenges your employer’s version of events. It can also present evidence that the insubordination claim is pretextual.
Writing this letter can help in a subsequent lawsuit, often for
What is insubordination?
Broadly speaking, insubordination in the workplace is a willful disregard for your employer’s commands or rules. This covers a wide range of employee behavior at the workplace.
Some examples of what can be considered insubordination include:
- refusing to do what your boss tells you to do,
- using foul language or insolence with coworkers or supervisors, or in front of customers or clients,
- not showing up to work on time,
- leaving work early,
- making off-color jokes in the workplace,
- harassing a coworker,
- being unproductive, or
- violating a company policy.
Some of these examples of insubordination are legitimate. Others can be baseless or false accusations. When these reprimands are groundless, your employer may be setting pretextual grounds to terminate you.
For example: Jerry jokes a lot at work, often at the expense of his boss, Albert. Albert does not mind, though, and says nothing. Then Jerry gets hurt at work and files for workers’ comp. Albert then writes up Jerry for his joking as retaliation for filing for workers’ comp and threatens to fire him.
What should I do if I have been called an insubordinate employee?
If your employer has written you up for insubordinate behavior in the workplace, you are not without recourse. Here are the things that you can do to help your case:
- stay calm,
- figure out why your employer is saying you were insubordinate,
- consider hiring an employment attorney,
- gather evidence of the event at issue,
- write a rebuttal letter,
- have your rebuttal letter included in your employee file next to the claim of insubordination,
- consider filing a lawsuit for retaliation or harassment, and
- continue recording or noting all relevant workplace interactions.
Taking these steps can protect your future.
1. Stay calm
The most important thing to do right after being written up for insubordination is to stay calm. Many employees make what could be a bad situation much worse by aggressively confronting their supervisor. Doing so can needlessly escalate the situation.
It is also extremely likely to backfire. If the insubordination claim is a legitimate one, then confronting your supervisor like this can lead to immediate termination. If the insubordination claim is being used as a pretext to take an adverse employment action against you, then confronting your supervisor can expedite that process.
2. Learn your employer’s story
Instead, after you have cooled down, you should take the steps necessary to learn the nature of the claim. By learning your employer’s version of events, you can make an informed decision about how to move forward.
Generally, this involves either:
- approaching your supervisor or the person who made the insubordination claim and asking, politely, for an explanation of the infraction, or
- going to your human resources (HR) department and reviewing the claim in your personnel file.
Most of the time, you will learn that either:
- the insubordination claim is what actually happened and is a legitimate one, or
- the events in the claim are incorrect, context is missing, or the insubordination claim is an inappropriate remedy for them.
If the insubordination claim is legitimate, it may be wise to drop your review and be more careful in the workplace. If it seems baseless, is exaggerated, or does not fit the course of conduct, you may want to do something about it.
3. Consider hiring a lawyer
Insubordination claims that seem pretextual to something more severe need to be handled with care. Your job may be at risk.
Getting the legal advice of an experienced employment lawyer from a reputable law firm can be extremely beneficial at this stage in the process. Their guidance can keep you from making a mistake and can set the stage for potential litigation.
4. Gather evidence
If you decide to be proactive about the situation, you will need to gather evidence to show that the insubordination write-up is groundless. This evidence can take the form of:
- written or recorded statements by witnesses, staff members, or other coworkers,
- security camera footage of the incident,
- notes that you wrote during or soon after the event,
- details about your official job duties, like a job description, to show that you were not in noncompliance with it, or
- other communications or information that provides context for the incident.
If this evidence suggests that the information contained in the claim of insubordination is flawed, it can be a sign that the claim should be rescinded.
For example: Brenda’s boss files an insubordination claim against her after she hit him in the face with the swinging door that leads to the restaurant’s kitchen. Brenda finds interior security footage of the event that clearly shows that it was an accident.
5. Write a rebuttal letter
The next step is generally to write a rebuttal letter. This letter should:
- dispute the allegations in the insubordination claim,
- explain any context that is missing from the claim, and
- show how the information that you gathered contradicts the facts or details made in the claim.
It should include the supporting evidence that you gathered.
Be sure to keep a copy of both the rebuttal letter and the evidence.
If you have hired an attorney, follow their advice on writing the letter or let them do it for you.
6. Get the letter into your personnel file
Bring a copy of the rebuttal letter and its supporting evidence to work so they can be added to your personnel file.
The procedures for this are going to vary by employer. In most cases, though, you would either:
- give the documentation to a representative in your HR department, or
- bring the package to the supervisor of the person who called you insubordinate.
If they refuse to accept it, you may want to try to send it via certified mail so you have a receipt that it was delivered.
Once your side of the story has been brought to your employer’s attention, several things can happen, including:
- the insubordination charge can be rescinded and removed from your personnel file,
- the charge is upheld and you are subjected to disciplinary action, or
- nothing.
If you are not apprised of updates, you may want to follow up to see what has happened. If you do not take this step, you may be surprised to learn that the reprimand is still in your file and is being used against you.
It is important to make notes of ongoing developments and interactions that seem relevant.
7. Consider filing a lawsuit
In extreme circumstances, the charge of insubordination can violate your rights in the workplace under state or federal employment law. This can give you grounds to file a lawsuit. The 2 most common lawsuits over a charge of insubordination are for:
- retaliation, if the charge was filed against you for exercising a legal right or privilege or for engaging in protected activity, like whistleblowing, and
- wrongful termination, if the insubordination charge is used as a pretext for firing you.
8. Keep records
Throughout this process, it is very important to make and keep records of anything relevant that happens in the workplace.
Why would my employer call me insubordinate?
Your employer may give you a written warning for acts of insubordination for 1 of 2 reasons:
- you were actually violating company policies, your employee handbook, the law, or wrongly refusing to follow a direct order, or
- your employer is using the charge to retaliate against you, violate your rights, or to prepare to terminate your position.
In some cases, it can be difficult to tell which one is going on.
Additionally, if these claims of workplace insubordination are especially common, they can amount to harassment for creating a hostile work environment. Overusing insubordination claims for trivial offenses can be devastating to employee morale and make the workplace stressful.
