The Law @ Work

Can Employers Ever Treat Employee Absences the “Rose” Way?

by Stefanie M. Renaud

Last week we discussed the fine imposed by the New York Knicks on player Derrick Rose for his “no call no show” for a basketball game.  Employers might wonder if they, like the Knicks, could “fine” their employees for absenteeism.  Generally, employers may “dock” the pay of non-exempt employees in the form of simply not paying employees for the time they didn’t work.  In other words, if an employee makes $16.00 per hour and is 15 minutes (.25 of an hour) late, the employer could deduct a maximum of $4.00 from what the employee otherwise would have earned had the employee arrived to work on time.

But what about a policy of actually fining late or absent employees – that is, in addition to losing wages for missed time, the employee must also pay a “fine” of $20.00?  Would that be permissible in Massachusetts?  In Camara v. Attorney Gen., 458 Mass. 756 (2011), the Massachusetts Supreme Judicial Court held that the Massachusetts Wage Act prohibits deductions from employee wages, except where the deduction constitutes a valid “set off” under M.G.L. c. 149, Section 150.  According to the Court in Camara, in order for a deduction to be considered a valid set-off, there must be: (1) a clear and established debt to the employer by the employee; (2) the amount of the debt or obligation must be clearly established, and; (3) the determination as to the existence and amount of the debt must be fairly established.  Accordingly, the Court struck down the employer’s policy, which permitted the employer to deduct funds from employee wages for the cost of damage to company vehicles.

Under the Camara holding, absenteeism “fines” deducted from an employee’s paycheck would not be a valid set-off under the statute.  However, Camara applies only to deductions taken directly from an employee’s pay.  What would happen if an employer did not deduct the fine from the employee’s paycheck but instead required the employee to pay the fine in cash to the employer?  Although there is no legal precedent addressing this situation, we don’t recommend implementing such a policy.  A better – and less risky – approach is to address attendance issues with a clear and uniformly-enforced attendance policy.

Before considering discipline for employee absences, a crucial first step for employers is to carefully evaluate the circumstances of the absence and ensure that the employee’s absence is not protected from discipline by one of the leave laws discussed in our last post, or any other law that provides protected leave.  The laws that entitle employees to leave also prohibit retaliation against employees for taking the leave.  Subjecting an employee to discipline for taking protected leave constitutes unlawful retaliation.  Even if one of the leave laws doesn’t apply, employers must consider their obligations under the Americans with Disabilities Act (ADA) and/or Massachusetts’ Fair Employment Practices Act, both of which require employees to provide reasonable accommodations to disabled employees.  If an employee needs time off due to a disability, an employer must provide the leave as a reasonable accommodation, as long as it does not create an undue hardship for the employer.

Still, that doesn’t mean that employees taking leave for a protected reason can just come and go as they please.  Even when employees are entitled to leave by law, employers generally may require employees to follow their normal call-in procedures to report absences.  Although employers need to make exceptions in emergency situations, in most cases, employers may discipline employees for a “no call no show.”

However, given the challenges of disciplining for attendance issues in the context of protected leave, the best way for employers to protect themselves is to have a written attendance policy, provided to all employees, that clearly lays out the employer’s attendance expectations and the call-in procedure for employee absences, including: whom employees should contact; which types of contact are acceptable (i.e., is it acceptable for employees to leave a voicemail, e-mail or text message, or are employees required to speak to an actual person?); when employees should notify their supervisors, and how often employees must call in to provide updates.  Any policy regarding updates should contain special provisions for employees on protected leave, as “checking up” on such employees, or requiring too frequent updates from them, could expose the employer to additional legal claims.

The attendance policy should also clearly describe the potential consequences of infractions, including how many absences, and within what time period, will result in disciplinary action.  For example, your policy may require termination for the third “no call no show,” or issue a “point” for every day the employee is more than 15 minutes late. Once employers have a policy in place, they must enforce it consistently and fairly.  This may require training or re-training managers to recognize potential problems and to respond to absences appropriately and equitably.  And of course, employers should be sure to document all absences, doctor’s notes, and any discipline issued under the attendance policy.

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