Can An Employee Be Terminated For Tardiness? Maybe Not!

October 27, 2008

It only keeps getting tougher!! Now the federal courts are making “Bonehead” decisions! Most employers assume, based on common sense, that they can terminate an employee for excessive tardiness. In a recent case, the court held that an employer violated the Americans With Disabilities Act when they terminated an employee for excessive tardiness when the employee’s punctuality was not found to be an essential function of the job. The employee was a paraplegic and argued that the employer should have provided a reasonable accommodation because the tardiness was directly related to his disability.

The court determined that although being on time was important to the job, there was no evidence that the employee needed to work with others to complete his work, or that his tardiness ever caused any detriment to the company, or that he ever failed to complete his work on time.

So now what? Ok, assuming that an employer has a policy in place regarding absenteeism and tardiness, and a manager or supervisor has an individual that is beginning to violate these policies, the warnings should state the policy being violated, why the behavior creates a problem (i.e. a receptionist who has to be on time to meet and greet visitors) and what they need to do to correct the problem (i.e. be on time). If the employee states that he or she has a disability that is creating the problem (you can always ask for a certificaton from a doctor) it is advisable to engage in an interactive discussion regarding a reasonable accommodation.

This decision, in my opinion, is very unusual and I would not enter into a panic mode. Have a policy in place and apply a common sense approach if there is a disability (watch pregnancy situations also especially if the person has not had an excessive absenteeism or tardiness issue before the pregnancy).


Obama or McCain? Which One Am I Voting For?

October 20, 2008

Brace yourselves. The election is right around the corner and I have been asked “Jim, who are you supporting in the upcoming election?” Well, whoever wins, employers need to understand that there will be some serious dramatic legislative changes in employment law and labor activity.

Larry Lorber, a Washington D.C. based attorney, and Chairman of the U.S. Chamber of Commerce’s Equal Employment Opportunity Committee, says; “2009 will be the year of living dangerously [from the human resources aspect of doing business].” The Democrats, according to Lorber, are preparing a number of bills in anticipation of Obama getting elected. Healthcare and immigration are two major considerations for reform, however, both McCain and Obama have relatively similar approaches. Which, simply stated, means that employers can expect some changes that will not benefit employers.

In addition, critics of “The Employee Free Choice Act” (EFCA), which is supported by Obama, say that its passage will lead to an expotential increase in union activity. Some employers who have not had to deal with union organizing, and the laws associated with it, will have to learn very quickly. McCain has opposed  EFCA which passed in the House in 2007 but failed to make it through the Senate. If the Democrats pick up the additional seats in the Senate, and Obama gets elected, it is predicted that the bill will be enacted within 100 days of his taking office. If McCain gets elected and the Senate gets the additional seats then any veto by McCain would be overcome. And, as we all know, political compromises happen all the time which could mean it gets in through either way if McCain, as an example, wants some tax bill pushed through.

EFCA would allow workers to join a union without a secret ballot election which ultimately means employees could be individually pressured by co-workers into signing authorization cards which means they would, at that point, have no opportunity to vote against the union. The end result would be an increase in employers  who would have a union shop! This increase in unions will mean that employers, managers, supervisors and human resources will have to get involved in a host of labor issues such as helping to negotiate and administer collective-bargaining agreements.

In either case the election will have a profound change on the work environment. Be it immigration, healthcare or EFCA. “Which one am I voting for?” Well, I never discuss religion or politics with clients!! Sorry (LOL), but the information presented is worth remembering as you head to the polls!


Reminder: Book Signing This Weekend

October 13, 2008

Clients have been asking for a reminder. A second book signing this weekend, Saturday, October 18, at Borders Books, the Santa Anita Mall in Arcadia, between 2pm and 5pm. Thanks again!


Non-Compete Agreements Upheld By The California Supreme Court

October 13, 2008

In 1872, the California Legislature articulated California’s public policy against noncompetition agreements in Business and Professions Code Section 16600. This issue has been argued from time-to-time and has stood the test. Employers who expect an employee to come to work for them and sign an agreement that if they ever leave they will agree not to compete with the employer for a specific period of time is against the law. It has stood the test for well over 100 years. It’s not going to change (Duh!).

The reasoning is simple. The Court has opined that, as an example, a person who works in an industry for twenty years, becomes employed, leaves that employer and is expected not to earn a living for a specified period of time in an industry they have worked in is unreasonable.

Now understand, this does not mean that an employee can leave and take company information with him. Anything gathered such as mailing lists, business cards, copies of proposals etc. all belong to the employer. If an employee does take such information, the employer can go after the former employee, as well as the new employer for “Unfair Business Advantage.” So there is recourse for such actions.


Flexibility Allowed In Timing And Scheduling of Meal And Rest Breaks

October 6, 2008

As all of you are aware, we have always recommended the strict timing of breaks and lunches. In a recent article I mentioned that the California Court of Appeals, in Brinker Restaurant Corp v. Superior Court, determined that an employer does not have to “Ensure” that an employee takes their break. The only obligation is not to “Prevent” an employee from taking their break

On the issue of the timing of breaks, Brinker also held that rest breaks need not be taken in the middle of every four hours if it would be impractical to do so. Furthermore, employees also need not take their first rest break before the scheduled meal period if it would be impractical to do so. The court made it clear that “Although adhering to such schedules for rest breaks is ideal, where the nature of the work or the circumstances of a particular employee make it impractical to do so, employers and employees have the discretion to schedule breaks at other times.” The Court’s decision provides the employer the flexibility necessary to ensure adequate staffing during peak business hours and permits employees to provide optimum service to customers.  

Now look you guys, this decision really does help you with the timing of breaks and lunches but DON’T GO CRAZY ON ME!! Please try to stick to a routine that makes sense and ensure that breaks and lunches are taken. Use the decision for the “Exception” to the rule, not as a general way of doing things. It simply gives you some flexibility during the peak business hours or an unexpected wave of customer service needs. If you have any questions please let me know!