Polite people sometimes refer to certain employees as being stubborn as a mule. Less polite people translate stubborn as a mule to names that are less polite. Stubborn employees can benefit employers by seeing difficult projects to the finish line but other stubborn employees sometimes refuse to cooperate with an employer’s request to assist with certain tasks. Those latter stubborn workers typically do not understand that they are required to cooperate with their employer as a condition of continued employment.
Employees have a duty to cooperate with their employer. The lawyers refer to workplace cooperation as part of an employee’s fiduciary duty to their employer. As part of the fiduciary duty, employees must put their employer’s interests in front of the employee’s personal interests. When Director A asks Tribal Council to engage with Vendor X but Council chooses Vendor Y, the frustrated Director must embrace Council’s choice to engage a vendor she did not favor. In addition to this example, there are other examples that illustrate the application of the fiduciary duty in the tribal workplace:
Cooperating with employee misconduct investigations as a victim, witness or alleged perpetrator.
Testifying as a witness in an unemployment compensation, workers compensation or grievance hearing.
Performing tasks that are outside the scope of a job description.
Responding to a TERO inquiry regarding the alleged failure to follow the tribe’s preference rules.
Disciplining an employee when there is a disagreement regarding the severity of the discipline.
Promoting or hiring a candidate that is not the employee’s first choice.
Of course, cooperation is conditioned on an employer allowing an employee to testify truthfully. If an employer directed an employee to fabricate her testimony there is no duty to conspire with an employer to provide evidence that is not truthful.
Another limitation on this duty is when an employer directs an employee to violate the law or a clear ethical standard. With these limitations in mind, disagreement with your chain-of-command’s decision is typically not sufficient to refuse a directive. A refusal to carry out a directive from your chain of command can be characterized as insubordination.
When employees disagree with a decision from their chain of command, unless there is a violation of the law or policy, the employee’s sense of fairness or justice is not sufficient to justify insubordination.
Richard McGee. richard@richardmcgeelaw.com. 612-812-9673.