3.14.2019
Chronic absence and tardiness in the workplace can wreak havoc on a business. Employers often wonder which actions are likeliest to put an end to these behaviors in the workplace without running afoul of the employment laws. The answer is complex because actions may touch on different employment laws.
There are many reasons for chronic absence in the workplace. Generally, an employee who has a medical condition or illness will be protected from discipline by federal and state laws. Only when the employee’s absence becomes an undue hardship on the employer can the employer legally terminate the employee. However, to qualify as an undue hardship, the employee’s absences must not constitute merely an inconvenience to the employer, but must involve a significant cost or disruption to the employer’s business.
If an employee takes too much time off for unprotected reasons, however, the employer may discipline or terminate that employee. An employer may dock an employee for the day’s pay, regardless as to whether the employee is exempt or non-exempt under the federal Fair Labor Standards Act (“FLSA”). An employer may also terminate an employee for taking excess unprotected time off. However, in order to do so, the employer should have a clearly communicated attendance policy and method for keeping track of time off. Employers should also ensure that they enforce the policy in a neutral manner, so as not to violate the anti-discrimination laws.
Employer methods for dealing with employee tardiness are dependent on whether the employee is exempt from the wage and hour laws. An employer cannot legally dock the daily pay of an employee who is exempt from the FLSA. Doing so may be interpreted as treating an exempt employee the same as a non-exempt employee, and thus cause the employer to lose the ability to treat the employee as exempt. This could result in an employer owing an employee for overtime pay. Therefore, it is best to discipline a non-exempt employee for chronic lateness via an oral or written warning.
Employers can dock non-exempt employees for lateness. For example, an employer can dock an employee for an hour’s work if that employee arrives at work an hour late. An employer can round up the docked time in half hour increments. So, for example, if an employee arrives at work at 9:17 a.m, rather than 9:00 a.m., the employer can dock the employee by a half an hour. Again, the policy on “docking” should be clearly stated in the employer handbook. An employer could also cut a non-exempt employee’s hourly wage, as long as the cut does not result in a deduction below the minimum wage. Before an employer docks an employee or cuts an employee’s wage, the employer should make sure they do not have knowledge of a medical condition that may be causing the lateness and that the employer is enforcing policies on a consistent basis.
Takeaway: Disciplining employees for attendance is one area where all employees cannot be treated alike.
Have an employment law question? Maybe we can help. Contact Stephanie D. Gironda, Esq. at (732) 855-6027.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.
