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Document absences, and excuses, too

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in FMLA Guidelines,Human Resources

One of the best ways to win lawsuits at the earliest stages is to have ready a treasure trove of documents showing your decision about an employee was fair, impartial and reasonable.

For example, for employees with absenteeism problems, document every absence. Then go one step further and make a note of the employee’s ‘‘excuse.’’

Recent case:
Doris Anderson worked for Duke Energy Corp. as an administrative specialist in Charlotte. In July 2001, her supervisor, Mark Johnson, counseled her about unscheduled absences. On Sept. 10 and 11, Anderson scheduled vacation. She did not return to work until lunch on Sept. 17. When disciplined, Anderson responded, “I was in a mental state of being concerned about what happened on 9/11/01. If Mark can’t understand that, then there’s no hope for him or this company.”

In 2002, Anderson received numerous notices about unscheduled absences and tardiness, taking more vacation than she had earned, and failure to produce proper time sheets. In January 2003, a supervisor threatened to fire her, but told her she would get another chance.

By 2005, more notices about attendance problems had piled up in Anderson’s file. On Nov. 21, 2005, when Anderson once again failed to surface, her supervisor, Vicki Thompson, called her at home. Anderson called back that evening to say she had worked part of the morning. When Thompson responded that she hadn’t seen her, Anderson said she had been in the bathroom, sick.

At that point, Thompson decided to consult records that showed when employees swiped their identification cards to enter and exit the buildings. They indicated that Thompson had not entered the building on Nov. 21. A later investigation found 15 instances in which Anderson recorded time on her time sheets when she was not in the building. In 2006, Duke fired her for falsifying time sheets.

Anderson filed a lawsuit claiming she was harassed and fired because she is black, and that some managers had a vendetta against her. The federal judge hearing the case found that the “uncontroverted record” showed that Anderson had failed to meet Duke’s legitimate expectation that she show up for work. (Anderson v. Duke, 3:06-CV-399, WD NC, 2008)

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