Our nonprofit has an employee who has been very reliable over the three years of their employment with us. Since this individual has an important role in the administrative functions of our operation, even absences planned well in advance can be difficult for us to adjust to.
Recently, this employee has not been showing up to work on time, and on some days not at all. When asked why, the employee responds with vague statements such as, “Things are kind of tough at home,” or “Something came up.”
We have managed to adapt to these unplanned absences, but this week, without warning or explanation, the employee did not show up for work for three days. As could be expected, chaos ensued.
We have a clear policy that when an employee misses three consecutive workdays and fails to inform their supervisor of their absence, the employee is assumed to have resigned. While we are concerned about this employee, we are going to accept this employee’s policy-specified resignation and provide their final pay.
Do you see any risks in taking this action?
Every employer has a right to expect their employees to be at work on time, and, if an employee must be late or even miss a particular day, to expect the employee to let the company know through the proper channels. As a matter of good HR practice, most employers maintain policies relating to absenteeism, tardiness, and no call, no show. These policies typically establish the expectations with respect to showing up for work and consequences that follow from failure to meet these expectations.
The policy you describe is commonly used to let employees know that failure to show up for work without notice will result in some form of discipline. Often this discipline is termination of employment, but when an employee does, if ever, explain the circumstances, lesser forms of discipline can be considered at the employer’s discretion.
Resignation vs. job abandonment
Be careful about characterizing an employee’s failure to show up or give notice of the absence as a resignation, even when company policy calls it that. A number of courts have held that resignation is a voluntary act on the employee’s part and that, as such, any employee resignation must be clear and unambiguous. While the employee may have voluntarily not shown up, there is no communication from that individual that establishes the fact that the employee intends, voluntarily and unambiguously, to end the employment relationship.
It follows, then, that any adverse action taken by the employer based on violation of a no call, no show policy is the employer’s action, making the separation an involuntary termination. In fact, by declaring no call, no show a basis for ending the employment relationship, the policy itself makes clear that it’s the employer who sets this separation in motion.
Because of this potentially risky misalignment with the legal definition of resignation, you might consider instead characterizing any no call, no show actions on the part of an employee as job abandonment. This is an accurate description: the failure to show up is, in effect, an abandonment of one’s job responsibilities. It is also a classification that provides a legitimate basis for terminating an employment relationship, without any need to strain the proper use of the term resignation. Incidentally, some employers classify no call, no show actions as resignation to prevent the employee from recovering unemployment benefits. Many of these employers also learn that so doing will not prevent the former employee from recovering those benefits.
Making efforts to accommodate legally protected absences
There is another issue that comes to mind and that presents some potential risk. There doesn’t appear to have been any attempt on your part to proactively reach out to the employee to see what is going on with them to determine whether the reasons for the absences and the failure to provide notice might have some legal protection.
For example, if the employee has come down with a serious health condition, one that makes working or even calling in either difficult or impossible, the employee might be eligible for any available protected paid sick leave, or if that employee is eligible for FMLA, they might have a right to take it. Another example, if the employee has been the victim of a crime or domestic violence and if there is a law in your state that allows leaves of absence for medical treatment or legal actions, then those circumstances that have made coming to work or providing notice difficult, or impossible, are protected.
Other examples that might warrant more tolerance or compassion would be family emergencies, serious financial events facing the employee, or the death of a family member or close friend.
By simply ending the relationship without making an effort to reach out to the employee to understand the circumstances that led to this violation of the no call, no show policy, you run the risk that the employee will file a claim that protected leaves are being denied or interfered with. And that’s regardless of whether you call your action to let the employee go a resignation or a firing.
Following up with the absent employee
In situations like this—especially considering the cryptic explanations for this individual’s absences—efforts on the employer’s part to communicate with the employee will pay dividends in reducing this kind of risk. If the employee does not respond to such efforts to make contact, the conclusion of job abandonment is supported, and termination becomes less of a risk. On the other hand, if the employee does respond and then provides the circumstances for the previously unexplained absences, you can make a more thoughtful and informed decision regarding whether separation is appropriate or whether the circumstances justify a different approach.
Perhaps the best follow-up, when an employee fails without any notification to show up, is to send that employee a registered letter with return receipt requested. The letter should make clear that the employee will be terminated for job abandonment within a specific number of business days following the employee’s receipt of the letter, unless the employee makes contact with a reasonable and acceptable explanation for the absences.
Doing this provides the employee with one last chance to explain themselves and the circumstances for the perceived job abandonment, and it puts that employee on clear and unambiguous notice of the consequences for failure to respond. More importantly, it also prevents the employer from making a premature decision to end the relationship with a valued employee, a decision that could present risk that would have been avoided if the employer knew the entire story.
One of the key principles of good HR practice is good, clear communication between employees and the employer. Terminating an employee because they haven’t shown up and/or reported in should be pursued only after proactive efforts to reach out to that individual have failed.
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Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.
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