The highest court in Idaho ruled that an employee who refused to answer an employer’s direct question is misconduct, which makes that employee ineligible for employment benefits. In Stark v. Assisted Living Concepts, Inc., the employee was the director of an assisted living facility. When a supervisor asked the employee if she had heard a rumor about another assisted living home closing, the employee refused to disclose where she had heard the rumor. Her supervisor determined that she had violated the employee handbook by refusing to follow a direct order and was terminated. The Idaho Industrial Commission determined that the employee qualified for unemployment benefits because her insubordination did not constitute misconduct. When the employer appealed the Commission’s decision, the Idaho Supreme Court clarified what constituted “misconduct” under the Idaho Unemployment Insurance Benefits Statute (I.C. § 72-1366 “The Statute”) for an employee to be ineligible for unemployment benefits. Whether an employer has reasonable grounds to discharge an employee for insubordination, and whether those grounds rise up to the level of misconduct for the denial of unemployment benefits, are two separate and distinct issues.


An employee is not eligible for unemployment benefits if the employee engaged in “disqualifying misconduct.” Disqualifying misconduct includes a disregard of the standard of behavior which an employer would expect from his or her employees.  The test for misconduct in standard of behavior cases is: (1) whether the employee engaged in behavior that fell below the standard expected by the employer; and (2) whether the employer’s behavioral expectations are objectively reasonable.


Actions That Are Misconduct:

Generally, for an employer’s behavioral expectations of an employee to be objectively reasonable, the employer must communicate any specific expectations to the employee, unless the behavioral expectations are naturally implied in the employment relationship. Recently, the Idaho Supreme Court held that when an employer asks an employee to refrain from slanderous public accusations and disruptive vulgar conduct, it is a reasonable behavioral expectation. In Sadid v. Idaho State Univ., the Court admitted that refraining from this type of behavior as a collegiate Professor was already implied in the job. However, the employee’s behavior was even more unreasonable, and misconduct under the Statute, when the employer continually had to ask the employee to behave. Therefore, while the employer cannot expect that his or her employees will always be subservient, the employer can expect his or her employees to not engage in arguments with the employer after an order is given.

Actions That Are Not Misconduct:

On the other hand, it is not misconduct when there is a single instance of complaining by an employee. In Folks v. Moscow Sch. Dist. No. 281, when the employee discovered that her orchestra program was cancelled, she used profane language towards her supervisor. The Court conceded that it was reasonable to expect a teacher to refrain from vulgar conduct in the workplace and that this expectation was inherent in the relationship. However, the court did not think her employer’s expectation was objectively reasonable. Because her supervisor knew the employee had a tendency to use profane language, and the fact that she was never disciplined, would lead the employee to believe that her conduct was acceptable. The employer’s tolerance of the behavior rendered any expectations unreasonable. Keep in mind that the employer does not lose the ability to terminate the employee for tolerating such behavior; just that it will not rise to the level of misconduct. It is crucial for employers to promptly communicate dissatisfaction regarding inappropriate employee behavior. Even though an employee may be insubordinate on the job, it does not automatically mean they engaged in misconduct for the purpose of denying unemployment benefits. Usually a single incident of relatively minor disrespect by complaining or arguing is not characterized as misconduct under the Statute.


Keep in mind that when an employee’s actions are a sufficient justification for termination is a different issue from whether those actions are misconduct for purpose of a denial of unemployment benefits. Firing an employee for insubordination arises when a direct order was given to the employee and the employee refused to comply with that order. Refusal does not necessarily require that the employee verbally reject the order, nonperformance of the order is sufficient. Insubordination may also occur when the employee uses abusive or foul language on the job. In this situation, the context and environment in which the employee used the language is key. For example, an employee can be insubordinate if he or she uses hostile language in the presence of customers or other employees, and the language is not of common discourse in that specific workplace. Some work environments may tolerate employees’ use of foul language, whereas others would not.

Before firing an employee for insubordination, employers should ensure that they have a valid reason for the decision, as well as properly document that decision. If this is done properly, employers may be able to avoid not only wrongful termination lawsuits, but also challenge unemployment benefits of the ex-employee. Remember, Idaho is an at-will state, meaning in the absence of a contract specifying the length of employment, the relationship is terminable at will by either the employee or employer.


  1. Create, or continually update, an employee manual. Although certain behavior is automatically assumed in some work settings, it is still wise to communicate all expected behavior from employees.
  2. Lay out the reasons for which an employee may be terminated or disciplined. For example, “including but not limited to, failure to show up to work without prior approval, refusing to respond to a direct order by a supervisor, the use of foul language,” etc.
  3. Document all instances of a violation of any of the work rules.
  4. Carefully listen to employee objections. An employee may reasonably believe that following an employer’s order could endanger him or her, believe that the demand is illegal, in violation of a union agreement, or is unfair. Objections should be addressed, as well as timely considered.


Please contact a Gjording Fouser lawyer if you would like any additional information about this topic or if you have questions about any employment issues facing your company.