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[Source: Bob Evnen, Woods & Aitken LLP, 03.2016 | Keywords: Human Resources, Employment Policies, Attendance]

We receive many calls on the INEDA Human Resources Helpline concerning employee attendance issues: tardiness, not at work enough, breaks and lunches.

It’s always a challenge to manage employees. Employees who don’t show up on time every day ready to go to work impact service quality, timeliness of service and dealership costs.

Over the years I’ve found that an employer can rank employees on measures of attendance, whether it’s showing up for work on time, being gone from work altogether or taking advantage of breaks and lunch periods. A clear pattern almost always emerges. Employers typically have one to three employees who are far and away the worst offenders.

These employees should be the focus of your attention. Imposing discipline on your worst offenders often has a positive effect. First, other employees whose attendance isn’t the best will get more serious about being at work on time every day since they see that there are consequences if they don’t. Second, morale will improve. When an employer allows an employee to get away with frequent tardiness or absence without any accountability, the good employees wonder why they should come in on time every day. The most common reaction of other employees when bad apples are discharged is, “What took you so long?”

Of course, after a termination, there is the problem of unemployment and possible charges of discrimination. What can an employer do to minimize the risk of liability?

First, have an attendance policy. Policies don’t need to have the complexity of the tax code. They should be no more or less complicated than what your company can effectively administer. The terms of the policies should reflect the culture of your company. Attendance policies should be reasonable, however, there is a lot of leeway here; employers are given a great deal of discretion in establishing the terms of their attendance policies.

Second, communicate the policy. The policy should be in writing and it should be given to every employee. Include it in your employee handbook if you have one. Get a written acknowledgement back from every employee that he/she has received a copy of the policy. Make sure employees understand the policy. This can be accomplished by periodically covering the attendance policy in company-wide meetings or training sessions. If you cover the attendance policy at a meeting or training session, make a written note of who was in attendance at the meeting and keep that record.

Third, enforce the policy. A policy that is ignored is worse than not having a policy at all. Some attendance issues could result in an immediate discharge – like falsifying time documents or being away without notice for more than a day or two (depending on the terms of your particular policy). Other policy breaches should be enforced using progressive discipline. An oral warning, followed by a written warning stating that further violations could result in discharge, sets the stage for discharge if, even after all of that, the employee fails or refuses to follow the policy.

Fourth, document what you do. Having a consistent form of documentation is the best practice. However, even if you don’t have a particular form, writing a note that states the date of the incident, the date of the warning, what happened and what discipline was imposed, is very important since it can prove helpful in defending against claims.

If you follow these basic steps you will be a lot more effective in defending against attendance related unemployment and discrimination claims.

Here are two important notes: First, employers with fifteen or more employees are covered by the Americans with Disabilities Act (ADA). Under the ADA some leave may be required when an employee is temporarily unable to work due to a disabling condition. Second, employers with 50 or more employees are covered by the Family and Medical Leave Act. Qualifying employees are entitled to up to twelve weeks of leave for certain qualifying reasons. Keep these laws in mind when you are enforcing attendance violations. If you are not certain whether these laws might impact a particular situation, reach out for some assistance before you act.

One of the perennial problems we hear about has to do with excessive break times. First, neither federal law nor the laws of Iowa or Nebraska require that employees be given scheduled breaks during the workday. If break times are provided, however, under federal law these breaks must be paid. In other words, they are taken on the clock. Employees cannot be required to clock out for breaks that are ten or fifteen minutes long.

Often, there are a few employees who lag behind when break time is over. They are finishing their cigarette. They are on their cell phone. They can’t seem to get themselves back to work. One solution that I’ve been asked about is requiring the employee to clock out when their break exceeds fifteen or twenty minutes. That way, at least if an employee goes long on their break, it will cost them money.

This is certainly an option that some employers have tried, but it comes with problems. Many employees would gladly trade a quarter hour of pay for a longer break time. Turning the situation into a negotiated deal puts the control of the situation into the hands of the employee who weighs the loss of a little bit of money against a longer break. That’s not really what the employer wants. The employer wants the employee to go back to work at the end of the scheduled break time.

The best answer is to address the situation head-on with the employee. This doesn’t have to be unpleasant, at least at the start. The manager should go over to the employee and encourage him/her to get back to work. Talk with the employee about it and explain that it isn’t permissible and it isn’t fair to the other employees who follow the break time rules. In extreme cases discharge might be necessary, though this would be a rare case indeed.

Using these basic guides, employers can tighten up their operations without needlessly running off employees.

Have a question regarding human resources? Call the HR Helpline at 855.277.5575.