Frequent absences and tardiness by employees not only hamper company productivity, but also can send a clear signal (good or bad) to other employees about whether or not such behavior will be tolerated by an employer.  For this reason, it is extremely important to address excessive absenteeism and tardiness early, before they become an epidemic among all employees.

The Problem

In the movie Office Space, the main character, Peter Gibbons, meets with an efficiency expert hired by his company, and the following exchange takes place: 

Bob Porter (efficiency expert):  "Looks like you've been missing a lot of work lately."

Peter Gibbons:  "I wouldn't say I've been missing it, Bob."

While sometimes the result of legitimate employee illness or unavoidable circumstances, frequent employee absenteeism or tardiness often signals employee dissatisfaction, as the quote above illustrates.  American workers now work more hours on average than they ever have before.  As a result, some employees rely on frequent absences or shortened work days to combat fatigue and stress.  Others, however, use frequent absences and tardiness as a way to express how they feel about their job.  In the latter instance, the employer must administer discipline effectively so that the employer can maintain a reliable and productive workforce.

Develop an Attendance Policy

The easiest step in combating excessive employee absenteeism and tardiness is for the employer to develop a written attendance policy and distribute it to every employee.  The policy also should be included in an employee handbook.  New employees should be required to read the policy (as well as the handbook) prior to starting work, and every employee should sign an acknowledgment that the employee has read, understands, and agrees to abide by this and other policies in the handbook. 

The attendance policy should clearly define excessive absenteeism and tardiness and the steps the employer will take to deal with them.  It also should address the employee's leave options both under internal company policies, if any, and under the federal Family Medical Leave Act ("FMLA").  If an employer has 50 or more employees within a 75-mile radius, the FMLA requires that all eligible employees be allowed up to 12 weeks of unpaid leave per year to attend to a serious health condition, for the birth and care of a newborn child, to care for an immediate family member with a serious health condition, or for the adoption or care of a foster child.  If the employer must comply with the FMLA, so must its attendance policies, which should specify the number of weeks of unpaid leave allowed and the acceptable circumstances for taking such leave.  Employers may require an employee to take any paid leave simultaneously with any FMLA leave, so that the employee is not unpaid for the full 12-week period, as long as the employer has a written policy in place to that effect. 

The attendance policy also should address tardiness, and violations should be treated consistently and seriously.  Simply put, employees who are allowed to get away with violating tardiness rules likely will eventually choose to push the envelope when it comes to absences. 

Administer Discipline

With an appropriate attendance policy in place, an employer's next step is to administer the policy effectively when infractions occur.  While this sounds easy in theory, it can be difficult to accomplish in practice.  Even a clear and concise attendance policy cannot account for every eventuality, and that fact is one reason why human resources departments exist.  Often, employers find that a "three strikes, you're out" system works well, with flexibility allowed depending upon the individual factual circumstances.  Upon an employee's first unscheduled and unexplained absence or tardiness, the employee will receive a written warning.  Good employer practice will require the employee to acknowledge receipt of this warning in writing even if the employee does not agree with it.  The acknowledgment does not serve as proof of, and is not intended to prove, the employee's agreement to the warning, but should state explicitly that the employee understands that any further violation of the company attendance (or any other) policy may result in additional discipline, up to and including termination.  Upon additional absences or tardiness, the employer either can provide further written warnings or consider termination, as the attendance policy allows.  An important point with respect to administering attendance policies is consistency.  Employers should make every effort to stay within the confines of the written policy because any deviation therefrom creates precedent that cannot be ignored when making future decisions about the behavior of other employees.

North Carolina Issues

Even though most employees in North Carolina are at-will employees (meaning they can be terminated for any reason that does not violate public policy or for no reason at all), an effective attendance policy is still the best tool to address attendance violations, and the best defense against an employee challenge to a termination for such violations.  For example, if an employee is terminated for excessive absences or tardiness by an employer in North Carolina and files for unemployment with the state, and if the employer can provide written proof of the violations and warnings, the Employment Security Commission ("ESC"), which hears all unemployment claims in North Carolina, typically will enter a finding of "substantial fault" by the employee.  As a result, the employer's account will not be charged (meaning, the employer will not be responsible for paying any unemployment benefits awarded to the at-fault employee).  Unfortunately, it is very unlikely that an employer will convince the ESC to enter a finding of "misconduct" when the reason for the termination is based solely on an employee's violations of the employer's attendance policy.  However, should the employer have additional reasons for the termination which, when taken in context with the attendance violations, evidence a pattern of willful disregard for the employer's interests and not just repeated rule violations causing no particular loss, it is possible that the ESC will make the leap and enter a finding of "misconduct."

Federal Issues

If the terminated employee also files a federal discrimination claim based upon federal laws such as the Age Discrimination in Employment Act of 1967, the employer likely will prove the validity of the termination if the employer provides the U.S. Equal Employment Opportunity Commission ("EEOC") with the employer's attendance policy and the written warnings (and a copy of the ESC decision, which likely will have been determined prior to the federal claim) to support the employer's position.  However, the EEOC also will want to review documentation of similar employment actions taken against employees who were not members of the employee's protected category as well as ones who were.  To put a finer point on the matter, the EEOC typically will investigate to see whether individuals not within the relevant protected category were treated better or more leniently than the employee bringing the EEOC charge.  Without evidence of appropriate written warnings, the EEOC is more likely to suspect an improper motive for the termination.  The presence of substantial written evidence supporting the employee's termination makes a federal discrimination claim less likely to succeed.

Conclusion

By using the above strategies, an employer not only will go a long way toward reducing excessive employee violations of attendance policies and defending termination decisions, but also will reap the added value of increased employee morale by providing its entire workforce with tangible evidence of how it treats all employees fairly.  

For further information regarding the issues described above, please contact William A. Oden, III.

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.