Q. We recently could not reach an employee who works off-site. Then we learned he was responding to customer messages by saying he was on vacation. After we learned this, he contacted his supervisor and said he had been on vacation and would be on vacation the rest of the week. His supervisor reports that he had not requested vacation time beforehand—and our policy states that vacation time must be preapproved. This employee had been a marginal performer, and now his supervisor wants to fire him. Can we fire him for this?
A. Maybe. There’s no easy answer. Here are some things to consider:
- Have you given him a chance to explain his side of the story? Perhaps he will say someone did preapprove the vacation, or he will have some other excuse. Before you consider what to do, it is usually a good idea to get the employee’s side of the story.
- Does he have an employment agreement? If so, does it set forth any restrictions on your ability to terminate his employment, such as a “good cause” for termination standard? You need to comply with any agreed-upon restrictions on your ability to terminate him.
- Even if he does not have an employment agreement, the fact that you mentioned a vacation policy brings up a possibility: Does the policy identify the penalty for taking vacation that has not been preapproved? Have you checked the policy itself? What about other policies, such as a discipline policy? If those create restrictions, now is the time to determine what they are. They may be just as binding on you as an express agreement.
- If this incident is merely “the straw that broke the camel’s back,” has there been any counseling, preferably in writing, of this employee about his prior ?
- What has been the past practice of your company in dealing with this problem? If this has come up before and you didn’t fire the employee in that case, can you provide a good explanation about why you would treat this employee differently now?
- Is this person in a protected class, such as race, age, religion, disability or gender? Has he engaged in protected conduct, such as filing a workers’ comp claim or EEOC charge, taking or raising internal complaints about wage-and-hour? If so, will you be able to defend an allegation that a termination decision is discriminatory or retaliatory?
- What should we do? It looks like employee used FMLA leave for elective surgery
- FMLA compliance doesn't rule out enforcing attendance policy
- Indefinite leave isn't a reasonable accommodation
- Don't expect access to employees' past job records to prove poor performance
- You can discharge if there's no way to tell when employee will return to work