We have all been late. Sometimes it is the traffic, sometimes it is your inability to get the kids out to the school bus on time, and sometimes you are late for inexplicable reasons (you know the usual things like alien abductions or the Top 5 list on your local morning news show). Most companies understand that an employee will on occasion be late. In most instances being late will subject you to nothing more than some jokes from coworkers. This Blog post is not about being occasionally late employee it is about the chronically late employee. The chronically late employee is rarely, if ever, on time. For them, being on time is a goal that they will achieve only after years and years of diligent practice. While they are to be applauded for being goal oriented, the truth of the matter is their tardiness impacts their coworkers and is a conscious violation of company rules by which all employees are expected to abide.
In most instances, when I am presented with an employer that has problems with a chronically late employee, it stems from a lawsuit filed by the employee after they were terminated. Typically, this lawsuit alleges that the termination was not based on their tardiness but that they were terminated because they fell in a protected category (i.e. race, gender, age, religion, disability etc.). In other words, the employer’s decision to terminate for tardiness was a pretext for a form of discrimination prohibited by law. The problem I find is that most employers do not keep good records of an employee’s tardiness. There are no notes of verbal counseling sessions and there are no written disciplinary notes. As a consequence, the employee concludes that, while their tardiness is a technical violation of company policy, it is one that will not be enforced. When I ask the company for the disciplinary file that documents a consistent problem with tardiness, the answer I get is, “We do not have any documentation but everybody knows he never shows up on time!” I do not know who this ” everybody” person is, but I can tell you no lawyer has won a case because of “everybody.” When an employee is terminated for a chronic problem, Judges and juries want to see something that backs up the termination decision. When you do not have that backup, it becomes more difficult for your lawyer to defend you.
This Blog is all about common sense approaches to employment law. So let us talk about how we can handle the chronically late employee. These are not hard and fast rules, but they should be food for thought.
1. Have you taken the time to talk to the employee about this in a nonthreatening fashion?
Sometimes, when you talk to your employee and listen to what they are saying, you will find that there are other factors (such as children or the care of elderly parents) that are causing this tardiness. Sometimes, these issues can be accommodated due to the nature of the job and, other times, such an accommodation is not possible because critical events occur at a set time each day. In either event, addressing this issue early on with an employee will ensure that your expectations are communicated such that the employee will not be surprised that you are taking disciplinary action the next time they are late.
2. Document, document, document.
If an employee is late you need to document their tardiness. Even if they do not receive a formal written notice of disciplinary action, all verbal counseling should be documented. This documentation will allow you to establish at a later date that the termination decision was not predicated on some illegal motive but, rather, was based on the employee’s consistent violation of your work policies.
3. If you have not documented the employee’s tardiness, now is the time to start.
A good way to do this is to review all time records that evidence the employee was tardy and prepare a disciplinary form warning the employee that future tardiness will result in further disciplinary action up to and including termination of employment. The disciplinary form should also recite all the times that the employee was tardy since this became a problem. Yes, I know it is going to be a hassle to go through the time records but that is the price you pay for not taking care of this problem when it first reared its head.
4. Think before you terminate.
If you are going to terminate for tardiness, make sure that decision is made on a rational basis, is not based on rumor, is based on solid documentation and is not based on emotion.
5. Employment Law Power Webinar.
If you think you may need help on how to properly document your files before making a termination decision, you may want to enroll in the Employment Law Power Webinar by clicking the following link (www.employmentlawpowerwebinar.com). Even if you cannot attend the webinar when it is offered, do not let that stop you, because the webinar will be available on demand for 30 days following its presentation