Insubordination at Work: What It Is and How Employers Should Respond

A team member flatly refuses a task you've asked for twice. Another tells their supervisor, in front of the whole team, that they're not doing it and walks off. Is that insubordination, and what are you allowed to do about it? Those questions feel urgent in the moment, and the right answer usually depends on details that are easy to skip when you're frustrated.

I wrote this for the owner, manager or supervisor who has to decide what to do. I'll cover how to tell insubordination apart from a misunderstanding or a performance problem, how to document it, how to choose a response that fits, and the mistake that can turn a fair discipline decision into a legal problem, which is acting against someone whose refusal was actually protected by law.

What counts as insubordination

In HR terms, insubordination generally means a team member deliberately refuses a reasonable instruction, or openly defies the authority of the person who gave it. Before you call it insubordination, look for four things:

• A clear instruction: someone gave a specific direction, not a hint. "Can someone clean the walk-in today?" isn't the same as "Please clean the walk-in before you clock out."
• The right person gave it: the instruction came from someone with the authority to give it, such as the team member's supervisor, a manager or you.
• It was understood: the team member heard it, knew what was expected and had what they needed to do it.
• A deliberate refusal: they said no, or said yes and then plainly didn't do it, without a good reason.

Open disrespect can count too when it undermines a manager's authority, such as cursing at a supervisor or telling them in front of the team that their instructions don't apply. A single sharp comment on a bad day is usually a conversation, while a pattern of defiance is a conduct issue you need to deal with.

Some things look like insubordination at first and usually aren't:

• Disagreeing, then doing it: a team member who pushes back respectfully and still does the work is cooperating.
• Asking why: a question about the reason for an instruction isn't a refusal.
• Not being able to: missing skills, tools, time or information is a performance or resourcing issue.
• An unclear instruction: if two reasonable people could read it two ways, start by fixing the instruction.
• Raising a legal concern: refusing an instruction they reasonably believe is discriminatory or unsafe can be protected, which I cover in the last section.

Insubordination is much easier to address when your expectations are written down somewhere your team has seen. If yours aren't, my post on what to put in a code of conduct is a practical place to start.

Insubordination vs. a performance problem

A helpful first question is whether you're looking at a "won't" or a "can't". Insubordination is a "won't", meaning the team member could do what was asked and chose not to. A performance problem is a "can't", or a "can't yet", where the work isn't getting done because of skills, training, unclear expectations, too much on their plate or a role that has drifted away from the job they were hired for.

The two call for different fixes. Discipline is meant to change a choice, so it won't help someone who doesn't know how to do the task, and it can feel unfair to them. Coaching, training, clearer expectations and sometimes a formal performance improvement plan are the tools for a "can't". A "won't" calls for a direct conversation about conduct and, if it continues, discipline.

Plenty of situations are a mix. A team member who refuses a new task may be refusing because nobody has shown them how and they don't want to fail in front of others. That's why the first conversation should include a plain question, "What's getting in the way?", before anyone writes anything up. The answer usually tells you which path you're on, and now and then it tells you the refusal is something the law protects.

How to document it

Good documentation is factual, specific and written close to the time it happened. Write it as if the team member will read it, because in Colorado they can ask to. A state law on personnel files requires private employers to let a current team member inspect and copy their own personnel file at least once a year on request, and a former team member can make one inspection after they leave.

For each incident, write down:

• When and where: the date, time and place.
• The instruction: what was asked, in the words that were used, who asked and how (in person, by text or in a meeting).
• The response: what the team member said or did, quoted as closely as you can, without your interpretation.
• Who else was there: the names of any witnesses.
• What happened next: what you said, and whether the task got done and by whom.
• Earlier conversations: any prior coaching or warnings about the same behavior, with their dates.

Stick to what someone saw or heard. "Refused to restock the cooler after two requests and said it wasn't their job" is useful, while "bad attitude" isn't, because nobody can check it and it reads like a judgment made before the facts. Among its promising practices for preventing retaliation, the EEOC suggests employers require decision-makers to identify their reasons for consequential actions, make sure the documentation supports the decision and emphasize consistency to managers.

If the refusal is tangled up with a complaint, for example a team member says they refused because their supervisor has been harassing them, the situation needs an investigation on top of the write-up. When I investigate, everyone is interviewed separately, each interview is documented, the people involved sign confidentiality forms, and leadership gets a written summary at the end.

Warnings, discipline and termination

Once you know it's a "won't", the response should fit what happened. A common path, often called progressive discipline, looks like this:

1. A private conversation: restate the expectation, ask what's going on and explain what happens if it continues. Make a dated note afterward.
2. A written warning: describe the specific behavior, the expectation and the consequence of another incident. Ask the team member to sign that they received it, and give them room to add their side.
3. A final warning: sometimes paired with a suspension, depending on your policies. If the team member is salaried and exempt, check the pay first: CDLE's wage and hour guide says an exempt salary can't be reduced except in listed cases, and one of them is an unpaid disciplinary suspension of one or more days under workplace conduct rules.
4. Termination: when the behavior continues after clear warnings.

Serious incidents can skip steps. Threats, abusive language toward a manager or a refusal that puts customers or coworkers at risk may justify a final warning or termination right away. Above all, keep the response proportionate and make sure you'd respond the same way to anyone else on the team who did the same thing.

Check your own handbook before you act. CDLE, the Colorado Department of Labor and Employment, explains that under the employment at will rule, employer decisions can be for any reason, whether fair or unfair, unless the employer agreed, for example, to fire only for good cause or after progressive discipline. Laws against discrimination and retaliation still limit why you can act. If your handbook promises a fixed set of steps, follow them, or update the handbook going forward so it leaves room for judgment.

Manager guidance on disciplinary actions and progressive discipline frameworks are part of my Employee Relations & Engagement work. For a written warning, I draft the actual communication for you to use, based on your business, instead of a cookie-cutter template.

If it does end in termination, plan the final paycheck before the meeting: when a Colorado employer fires someone, CDLE says the employer must immediately pay all wages owed. If your payroll unit isn't regularly scheduled to be operational at that moment, the pay has to be available no later than six hours after the start of its next regular workday, or, if payroll is off-site, delivered within 24 hours after its next regular workday starts to the worksite, your local office or the person's last known mailing address. If the former team member files for unemployment, I can help you prepare the response or handle it for you completely.

Avoiding a retaliation claim

Some refusals and complaints are protected by law, and disciplining someone for them is retaliation, even when the behavior felt like insubordination to you. Protected situations that can look like insubordination include:

• Refusing an order they believe is discriminatory: the EEOC lists refusing to follow orders that would result in discrimination as protected activity, along with telling a supervisor or manager about discrimination or harassment and answering questions in an employer's harassment investigation.
• Complaining about discrimination in Colorado: the Colorado Civil Rights Division says the state's anti-discrimination law covers anyone employed in Colorado, and that people who make a complaint of discrimination or request a reasonable accommodation are protected from retaliation. The federal Title VII and ADA rules cover employers with 15 or more employees, so the Colorado protection reaches small teams the federal rules don't.
• Refusing dangerous work: OSHA protects a refusal when, where possible, the team member asked you to eliminate the danger and you didn't, they genuinely believe there's imminent danger, a reasonable person would agree there's a real danger of death or serious injury, and there isn't time to get it corrected through regular channels such as an OSHA inspection.
• Raising health or safety concerns: CDLE says Colorado's health and safety whistleblower law, PHEW, protects raising a reasonable concern about workplace health or safety violations. You don't have to agree with the concern, but you can't discipline someone for raising it.
• Wage and hour complaints: according to CDLE's guide to retaliation protections, complaints about wages or hours are protected whether they're formal or informal, written or verbal, and a team member is protected even when they're wrong about the rule, as long as their belief was reasonable.
• Sick leave and group action: CDLE's summary of retaliation protections also lists using paid leave for health or safety needs, discussing pay rates and concerted activity, such as advocacy for pay or work conditions, as protected activity.

Protected activity doesn't make someone impossible to discipline. The EEOC's retaliation guidance says employers can still discipline or terminate for poor performance or improper behavior even after an EEO complaint, and it names insubordination among the kinds of misconduct that can be a legitimate reason. The outcome turns on why you acted and whether your records show it.

Before you act on a refusal, run through these checks:

• Timing: did the team member complain, raise a concern or ask for leave or an accommodation shortly before the behavior you're about to discipline? The EEOC lists suspiciously close timing as evidence that can support a retaliation claim.
• Consistency: have you handled the same behavior the same way for others? Disciplining one person for something that regularly goes undisciplined is another kind of evidence the EEOC names.
• Your records: does your documentation of the conduct come before any complaint, and does it describe what happened rather than the person?
• A second look: when a manager recommends discipline after a complaint, the EEOC says the employer may reduce the chance of retaliation by independently evaluating whether the action is appropriate. In a small business, that could be you reviewing a manager's recommendation, or an outside HR person reviewing yours.
• What you've heard: CDLE says acting against someone because you believe they may make a wage complaint is retaliation too, even if they never file one.

Documentation and corrective actions are also among the manager compliance training topics I offer through Training & Development, along with retaliation.

If a refusal on your team has turned into a standoff, contact me to book a consultation.