URGENT! NEED ADVICE ON AN ATTENDANCE ISSUE - TX
TLCTX
43 Posts
Our attendance policy states that any employee who does not call in for two consecutive days and does not show up for work is considered to have abandoned his job, and will be terminated.
I have an employee that goes to Mexico, and misses Monday without calling in. Then, he calls in on Tuesdays and lets someone know what's going on.
This has been happening, without any documentation, and without my knowledge. It happened again this week.
Now, they want me to fire the employee, since he didn't call in this week again until Tuesday, but since we have let it go on in the past I feel like we need to let him come back, document the incident, and notify him in the event it happens again he will be termed.
Opinions would be helpful
Thanks - Vanessa
Comments
How many times has this occurred? Is it affecting his performance or the group's performance? Is he out of vacation days? Has he been spoken to before about this intolerable behavior? Are you allowing others to do the same?
You should definitely have a discussion with him and assert how his behavior and attendance problem is affecting the company.
Is Texas an at-will state? If so, I think you are well within your right to terminate him based on spotty attendance or abuse of vacation time.
The employee has not abandoned his job under your policy. He did call and notify you of his absence on the second day assuming he was not schedule to work over the weekend. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
You do have documentation of his absences in for form of his time cards and can show a pattern of missing select days, i.e. missing every other Monday etc. <?xml:namespace prefix = u1 /><?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Texas is an at will state, so I agree with Efeldman that you are within your rights to terminate this employee.
Do you wait for him to return to terminate him or do it now? Does he have any company property? If he does, then I would wait for him to return to work before I terminated him.
I would remind his supervisor that documentation is important for this exact reason. I assume it's his supervisor who wants to fire him, yet did not want to document the problems. A quick training session with all your managers may be in order.
(every state in the union is an at-will state)
Here are a couple of things you should consider. First, job abandonment shuold be 3 consecutive no-call no-show periods of scheduled work (e.g., Fri, Sat, Mon, if the employee was not scheduled to work on Sun.) That is the most common time frame for job abandonment and, according to one attorney, it is a standard that is enforceable in Texas. Remember that job abandonment means "we're adminsitratively ceasing this person's employment relationship to the Company because we assume he has quit" -- that's a proposition that can be challenged. You'd hate to have to reinstate with back pay plus damages. I doubt it would happen, but I like to stick with trial tested standards when I can. You may want to checkw tih Texas Workforce Commission directly, as well. I have won UI defenses against job abandonment related claims on a 3 day approach.
The second factor is the nature of your own attendance policy. Have you no attendance policy beyond job abandonment? If not, then formulate one, add it to yur handbook, obtain acknowledgement sign sheets from existing employees (or get new handbooks out and obtain receipts) and apply the new policy. If you already have a policy, apply what you have. If the person is working within the system and that is not satisfactory, then change the system. I often hear people complain that someone is "gaming the system". The system exists to give a line beyond which you cannot cross withour special intervention, not to provide a line with some indeterminate middle space that the company hopes people will stay within. If the line is too far out, then pull it in.
This has been happening, without any documentation, and without my knowledge. It happened again this week.
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Here's what I tell my managers: "If it is not documented, then it didn't happen. So since this is the first time it happened, you need to follow our disciplinary procedure and document what is discussed with the employee."
Also under TX State Unemployment, the judges tend to rule more in favor of the employer IF the employer has warned the employee and told them "your job is in jeopardy". The person has to have been warned that they could lose their job if they don't change/stop/etc whatever they are doing wrong.
So I would follow your disciplinary procedure as if this were the first time. You say you have no documentation....does the supervisor? If so, you might be further along. But otherwise I agree with LadyAnn. Without documentation (and warnings), it didn't happen. Because the employee could argue that they had done it this way a gazillion times and never got disciplined. How were they to know that this time they would?