Editor’s Note: William A. Oden, III is a member of the Labor and Employment Practice Group at Ward and Smith, P.A.

The Problem

In the movie Office Space, the main character, Peter Gibbons, meets with an efficiency expert hired by his company, and the following exchange takes place:

Bob Porter (efficiency expert): "Looks like you’ve been missing a lot of work lately."
Peter Gibbons: "I wouldn’t say I’ve been missing it, Bob."

While sometimes the result of legitimate employee illness, frequent employee absenteeism often signals employee dissatisfaction, as the quote above illustrates. American workers now work more hours on average than they ever have before. As a result, some employees rely on frequent absences to combat fatigue and stress. Others, however, use frequent absences as a way to express how they feel about their job. In the latter instance, the employer must administer discipline effectively so that the employer can maintain a reliable and productive workforce.

Develop an Attendance Policy

The easiest step in combating excessive employee absenteeism is for an employer to develop a written attendance policy for inclusion in the employer’s employee handbook and for dissemination to every employee. New employees should be required to read the policy prior to starting work, and every employee should sign an acknowledgment that the employee has read, understands, and agrees to abide by this and other policies in the handbook.

The attendance policy should clearly define excessive absenteeism and the steps the employer will take to deal with it. It also should address the employee’s leave options both under internal company policies, if any, and under the federal Family Medical Leave Act ("FMLA"). If an employer has 50 or more employees within a 75-mile radius, FMLA requires that all eligible employees be allowed up to 12 weeks of unpaid leave per year to attend to a serious health condition, for the birth and care of a newborn child, to care for an immediate family member with a serious health condition, or for the adoption or care of a foster child. If the employer must comply with FMLA, so must its attendance policies, which should state clearly the number of weeks of unpaid leave allowed and the acceptable circumstances for taking such leave. Employers may require an employee to take any paid leave the employee has simultaneously with any FMLA leave, so that the employee is not unpaid for the full 12-week period, as long as the employer has a written policy in place to this effect.

Administer Discipline

With an appropriate attendance policy in place, an employer’s next step is to administer the policy effectively when infractions occur. While this sounds easy in theory, it can be difficult to accomplish in practice. Even a clear and concise attendance policy cannot account for every eventuality, and that fact is one reason why human resources departments exist. Often, employers find that a "three strikes, you’re out" system works well, with flexibility allowed depending on individual factual circumstances. Upon an employee’s first unscheduled and unexplained absence, the employee will receive a written warning. Good employer practice will require the employee to acknowledge receipt of this warning in writing even if the employee does not agree with it. The acknowledgment does not serve as proof of the employee’s agreement to the warning, but should state explicitly that the employee understands that any further violations of the company attendance (or any other) policy may result in additional discipline, up to and including termination. Upon additional absences, the employer can either provide further written warnings or consider termination, as the attendance policy allows. An important point with respect to administering attendance policies is consistency. Employers should make efforts to stay within the confines of the written policy because any deviation therefrom creates precedent that cannot be ignored when making future decisions about the behavior of other employees.

North Carolina Issues

Even though most employees in North Carolina are at-will employees (meaning they can be terminated for any reason or for no reason at all), an effective attendance policy is still the best tool to address excessive absenteeism, and the best defense against an employee challenge to a termination for such absences. For example, if an employee is terminated for excessive absences by an employer in North Carolina and files for unemployment with the state, if the employer can provide written proof of the absences and warnings, the Employment Security Commission ("ESC"), which hears all unemployment claims in North Carolina, typically will enter a finding of substantial fault by the employee. Not only will the amount of unemployment benefits the terminated employee is eligible to receive be reduced, the employer’s account will not be charged (meaning, the employer will not be responsible for paying such unemployment benefits to the state because of the employee’s substantial fault).

Federal Issues

If the terminated North Carolina employee also files a federal discrimination claim based on such laws as the Age Discrimination in Employment Act of 1967, the employer likely will prove the validity of the termination if the employer provides the U.S. Equal Employment Opportunity Commission ("EEOC") with the employer’s attendance policy and the written warnings (and a copy of the ESC decision, which is likely to have been determined prior to the federal claim) to support the employer’s position. Without appropriate written warnings in place, the EEOC is more likely to suspect an improper motive for the termination. The evidence of substantial written evidence supporting the employee’s termination makes the employee’s age discrimination claim less likely to succeed.

Conclusion

By using the above strategies, an employer not only will go a long way toward reducing excessive employee absenteeism and defending termination decisions, but also will reap the added value of increased employee morale by providing its entire workforce with a tangible example of how it treats all employees fairly.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. William A. Oden, III practices in the Labor and Employment Practice Group, where he advises businesses of all sizes on employment matters. Comments or questions may be sent to wao@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.