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Tough attendance policy? Careful when calling ‘Strike three’

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Performance Reviews

To combat absenteeism, many organizations use a progressive discipline approach. These plans feature escalating penalties plus a no-excuses approach to the final violation. Some plans call for automatic termination when an employee hits a specific number of days absent or times tardy.

That’s fine. Those measures may decrease late arrivals and cut down on unexcused absences. But if a termination is about occur, HR must be sure the last incident is beyond question.

Here’s why: Employees who belong to a protected class (e.g., age, race, disability) or who have filed previous discrimination claims may try to argue they’re being targeted with overly severe discipline. If they can challenge that final attendance straw—and it’s the only stated reason for their punishment—they may get a shot at a discrimination or retaliation lawsuit.

Advice: Ask the “third-strike” employee about that last absence before you terminate. Let him defend himself. Was he late because his wife suddenly got ill and now he’s eligible for FMLA leave? Did a blood sugar imbalance require adjusting diabetes medication levels? Did a computer problem prevent him from logging into the attendance system even though he was at his desk on time? Any of those “excuses” may be valid, making your termination decision suspect.

Recent case: George Smith, who is black, worked for SBC Ameritech. A supervisor who frequently greeted him with street slang like “What up, G?” fired him. Smith filed a complaint with the Michigan Department of Civil Rights, and the company settled by paying Smith $5,000 and reinstating him.

But Smith was fired again after allegedly violating attendance policies. His last strike came when he clocked into the computer system three minutes late. No one ever asked him about the late arrival before the discharge. Smith said he arrived on time, but his computer froze up. Several co-workers told the court they observed Smith at his station struggling to login.

Smith sued again, alleging that the company used the attendance policy just as an excuse to fire him in retaliation for his earlier complaint. The court said a jury should decide. (Smith v. SBC Ameritech, No. 06-14007, ED MI, 2007)

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